Davenport v. Davenport (In re Davenport)

• Decision Date: 20 July 2011
• Docket Number: No. A126181.,A126181.
• Citation: 194 Cal.App.4th 1507,2011 Daily Journal D.A.R. 6386,125 Cal.Rptr.3d 292,11 Cal. Daily Op. Serv. 5378
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Jill L. DAVENPORT and Kenneth L. Davenport. Jill L. Davenport, Appellant, v. Kenneth L. Davenport, Respondent.

194 Cal.App.4th 1507

125 Cal.Rptr.3d 292

11 Cal. Daily Op. Serv. 5378

2011 Daily Journal D.A.R. 6386

In re the MARRIAGE OF Jill L. DAVENPORT and Kenneth L. Davenport.Jill L. Davenport, Appellant,

v.Kenneth L. Davenport, Respondent.

No. A126181.

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

May 4, 2011.

Rehearing Denied May 24, 2011.

Review Denied July 20, 2011.

O'Brien Watters & Davis, Santa Rosa, Michael G. Watters, Deirdre Taber Kingsbury, Diane A. Singleton, Joseph A. Piasta II, for Appellant.

Perry, Johnson, Anderson, Miller & Moskowitz, Santa Rosa, John E. Johnson, Deborah S. Bull, for Respondent.

RICHMAN, J.

Appellant Jill Davenport and respondent Ken Davenport were married in 1948, a marriage that would produce three daughters and a vast estate. Jill ¹ and Ken separated in 1990, and in 2006 Jill filed a petition for dissolution. The petition was filed by a long-established Sonoma county law firm, signed by an experienced lawyer there. Early on, a young and inexperienced attorney at that firm became Jill's primary attorney, and interacted with Ken's attorneys for the next two years, interactions that would generate a 35–page register of actions and 19 volumes of court files.

In May 2008 Jill filed a motion under Family Code section 271² seeking $600,861 in attorney fees and $332,933 in costs. Ken responded with a section 271 request of his own, and the cross-motions were heard over a five-day period by the Honorable Cerena Wong, an experienced family law judge who had been handling the matter for well over a year. Following extensive post hearing submissions, Judge Wong issued a 31–page decision that denied Jill's request and granted Ken's, awarding him $100,000 in sanctions and $304,387 in attorney's fees.

Jill appeals, asserting procedural and substantive arguments, the former essentially contending that Judge Wong ignored the law, including the law of evidence, and the latter essentially contending there is no substantial evidence supporting the award. We conclude that none of Jill's arguments has merit, and we affirm.

BACKGROUND

The Community and the Dissolution

As noted, Jill and Ken were married in 1948. As Jill's attorney would describe it, she “supported Ken during the marriage by raising their three daughters and managing the household. Jill supported Ken in the business ventures. Among other notable achievements, Ken became the youngest Ford dealer in the nation at age 23.”

Sometime around late 1969 or early 1970 Ken began to develop an industrial park in Santa Rosa known as Industry West, which came to include some 500,000 square feet of factory and warehouse space. In addition to Industry West, Jill and Ken acquired numerous other properties, including a large ranch in Montana, land in Idaho, and various properties in and around Santa Rosa. While the final accounting has not yet been completed, according to correspondence from the parties the value of the community estate is in the range of $57 million.

Jill and Ken separated in 1990, and remained in that state until March 2006, when a petition for dissolution was filed. During the separation, Ken apparently continued to manage the couple's financial affairs. While the relationship between Jill and Ken during this period is not germane to the issue before us, we do note there was evidence of agreement and cooperation, including their participation in joint estate planning favorable to Jill, and agreement to sell off many of the Industry West properties.

There is, by contrast, also evidence of incompatibility, at least toward the end of the separation period, as illustrated by a letter from Jill dated February 3, 2006, which begins as follows:

“Dear Ken:

“I received your letter of 1/10/06.

“I am disappointed that you are not able to grasp what the problem is here, and disappointed too that you will not allow me to talk to you about it.

“I must tell you that I was really frightened by your manic raging at me at your house. It felt just like the old days. I felt so threatened. I will never allow you to do that to me again.

“As for your letter, you really missed the mark. To mention just one thing in your letter: Why would I stand around and wait for your house to sell? Why should that be my problem? This is my concern at this time: As I have told you, you have stepped over the line. You have lied to me, you have not been honest with me, and you have lost my respect. You made these choices. I am concerned that you are being taken advantage of in your current situation. You are vulnerable. I have noticed a dramatic change in your behavior and your spending habits over the last two or three months which concerns me for your welfare as well as our assets.”

Jill's letter goes on to make certain requests, including for increased monthly payments from Ken and copies of financial records. And the letter ends with this:

“Once I have had the opportunity to review our financial records (which I have never done for the duration of our marriage) in addition to the $20,000 per month, I would like to agree to a specified lump sum of money to provide me with a liquid sum to give me protection in the event that I need more than my monthly income, for whatever purpose. By lump sum, I mean a substantial sum to be determined after my review of our financial records. I do not want to worry about my ability to enjoy the fruits of our labor over all of these years, nor do I want to worry in case of catastrophic events over which neither of us have control.

“This is something we can do very simply and with no legal fees or time involved. If we have to hire attorneys, we will spend what would probably amount to a lot of legal fees and charges. I look forward to hearing from you as soon as possible.

“Please respond on or before February 10, 2006.”

(s/ Jill)

“[V]ery simply and with no legal fees,” Jill implored. It was not to be.

Ken responded on February 7, 2006, indicating he would do his best to comply, but that he would “need to discuss the large cash payment you would like. This will require some time.” The next thing in the record is Jill's petition for dissolution of marriage, filed days later, on March 1, 2006. Jill was 75 years old at the time, Ken 78.

The Attorneys

The petition for dissolution was filed by the firm of O'Brien Watters and Davis, LLP, with Michael G. Watters, CSB no. 63140, listed as the individual attorney. From all indications, Michael Watters played a rather limited role thereafter, as very early on—and at least by May 16, 2006—Andrew G. Watters, CSB no. 237990, entered the picture as counsel. Andrew Watters had become a member of the State Bar only months earlier, in November 2005, and began working at the firm on February 24, 2006. He met Jill three days later, and from that point on, he said, he met with her on more than 100 occasions over the next two years. And as he described it under oath, he “personally handled or [was] personally involved in each and every transaction between the parties since the petition was filed, as well as each and every discovery request, discovery event, court proceeding, and other substantive matter.” In short, Andrew Watters became the lead lawyer for Jill in what would necessarily be a complex family law litigation. And as will be seen, his conduct in the representation of Jill would become a significant issue at the hearing. ³

Ken was represented over time by three attorneys. The first was Michael Merrill, CSB No. 40963, of Merrill, Arnone & Jones. In January 2007, James Benoit, CSB no. 41741—described by Andrew Watters at one point as the “dean of the local Family Law Bar”—substituted in. Mr. Benoit represented Ken until March 2008, when he was replaced by John E. Johnson, CSB no. 114902, of Perry, Johnson, Anderson, Miller & Moskowitz. Mr. Johnson was Ken's attorney in the proceeding below, and his firm represents Ken on appeal.

The Judge

The first few matters in the dissolution proceeding were held before the Honorable Gary Nadler, and his involvement is not pertinent here save in one respect: his ruling and admonition in an early (July 20, 2006) motion filed by Jill seeking to compel further responses to form interrogatories. Granting the motion but denying sanctions, Judge Nadler noted as follows:

“1. Counsel for Petitioner/Wife made an unreasonable attempt to meet and confer before filing Petitioner/Wife's Motion to Compel further responses to her Form Interrogatories (Family Law Set One) on 7/20/06. Specifically, counsel wrote a single meet and confer letter dated 5/18/06 and failed to respond to Respondent/Husband's reply letter dated 5/25/06. In fact, counsel for Petitioner/Wife failed to discuss the matter further with counsel for Respondent/Husband in any manner at any time thereafter. [¶] ... [¶] “5. Sanctions were requested by both parties. Based on the mutuality of conduct of the parties, each party's request for sanctions is DENIED. See Townsend v. Superior Court (1998) 61 Cal.App.4th 1431 .

“6. Counsel for both parties are admonished to change their meet and confer practices so that meeting and conferring is meaningful and not just a token gesture.”

Sadly, it would turn out, Judge Nadler's admonition was not heeded.

By early 2007 the Honorable Cerena Wong had become involved, and handled all matters thereafter, including the hearing that led to the order from which Jill appeals. Judge Wong is an experienced jurist, having been appointed to the court in 1985. More significantly, she presided over a family law department for eight years,⁴ an experience that, as will be seen, was manifest throughout the lengthy proceeding below.

The Proceedings in the Dissolution

The numerous proceedings in the dissolution proceeding are not individually germane to the issue before us, and we do not set them out in detail. A few general observations are appropriate, however, beginning with the fact that the proceeding generated 19 volumes of court files which, Judge Wong noted, is “outra...