George v. Deamon (In re George), D073667

• Court: California Court of Appeals
• Writing for the Court: IRION, J.
• Citation: 35 Cal.App.5th 476,247 Cal.Rptr.3d 420
• Parties: IN RE the MARRIAGE OF Stephanie GEORGE AND Daniel C. DEAMON. Stephanie George, Appellant, v. Daniel C. Deamon, Respondent.
• Decision Date: 17 May 2019
• Docket Number: D073667

35 Cal.App.5th 476
247 Cal.Rptr.3d 420

IN RE the MARRIAGE OF Stephanie GEORGE AND Daniel C. DEAMON.

Stephanie George, Appellant,
v.
Daniel C. Deamon, Respondent.

D073667

Court of Appeal, Fourth District, Division 1, California.

Filed May 17, 2019

Stephanie George, in pro. per., for Appellant.

Higgs, Fletcher & Mack, John Morris and Rachel E. Moffitt, San Diego, for Respondent.

IRION, J.

35 Cal.App.5th 478

In this dissolution proceeding, Stephanie George appeals from an order requiring her to pay $ 10,000 in sanctions pursuant to Family Code section 271¹ to her ex-husband Daniel C. Deamon after Deamon was required to file a motion for entry of judgment pursuant to the terms of the parties' settlement. George contends that the family court erred by awarding sanctions without considering any oral testimony, relying instead on documents submitted in support of the sanctions motion. We conclude that George's argument lacks merit, and we accordingly affirm the order.

I.

FACTUAL AND PROCEDURAL BACKGROUND

After a marriage of 19 years, George and Deamon separated on March 23, 2015, and dissolution proceedings were commenced. The parties attended a mandatory settlement conference on June 1, 2017, at which a settlement was reached as to all of the disputed issues between the parties. The terms of the settlement were put on the record before the family court, and the court directed counsel for Deamon to prepare a judgment and forward it to George for approval before submitting it to the court. The family court stated that the settlement was enforceable by a motion to enter judgment pursuant to

35 Cal.App.5th 479

Code of Civil Procedure section 664.6, if necessary.² On June 1, 2017, the family court also entered a judgment of dissolution.

Counsel for Deamon prepared a judgment and forwarded it to George for her approval, but she raised several issues and demands, based on which she stated that she was not prepared to approve the judgment. As a result, on July 31, 2017, Deamon filed a request for entry of judgment according to the terms of the parties' settlement pursuant to Code of Civil Procedure section 664.6. Deamon also included a request that the court impose sanctions of "at least $ 10,000" pursuant to section 271 based on George's refusal to approve the proposed judgment (the sanctions motion). Deamon submitted a declaration in support of the sanctions motion, which referenced several documents that were attached to a notice of lodgment concerning the attempt by Deamon's counsel to obtain George's approval of the proposed judgment.³ Deamon also filed two additional

247 Cal.Rptr.3d 422

declarations prior to the hearing on the sanctions motion containing updated information pertaining to the motion and referencing recent documents that were also attached to the notice of lodgment. It is unclear whether George filed a written opposition to the sanctions motion. No such opposition appears in the appellate record, but a reference was made in one of Deamon's declarations to a responsive declaration filed by George.⁴

On September 7, 2017, the family court held a hearing on Deamon's request to enter judgment pursuant to the terms of the parties' settlement. The hearing on the sanctions motion was continued to a later date. At the September 7 hearing, George stated that she approved the form of the judgment currently proposed by Deamon's counsel, and the family court entered judgment.

On October 23, 2017, the family court held a hearing on the sanctions motion. George appeared, representing herself in pro. per., and Deamon appeared through his counsel. Deamon resided in Japan and did not appear in person or telephonically for the hearing on the sanctions motion. At the hearing, George reiterated her objection to Deamon's lack of physical presence, which she stated was an objection she had made consistently

35 Cal.App.5th 480

throughout the dissolution proceedings. George stated, "I do want the Court to know, and because I am making a record of this, that I have had an ongoing—I have made an ongoing objection, and I have objected every time. I objected last time, the time before that, the time before that, under 217 of the Family Code and ... In re the Marriage of Shimkus [ (2016) 244 Cal.App.4th 1262 ] as to the respondent's literally ... never being here, not one time." In response, the family court judge, who was newly assigned to the matter, stated, "While you are making the record, I have, because I am new to the case, I took the opportunity to review the entire file, and I noted your objection, so we will note a continual objection." At another point, George stated, "I have always objected to not having [Deamon] here and objected to hearsay. I am not stipulating on the declarations. ... I have objected to hearsay."

After hearing extensive comments from George and counsel for Deamon on the sanctions motion, the family court took the matter under submission. On November 28, 2017, the family court issued an order requiring that George pay $ 10,000 in sanctions to Deamon. The court found that "[Deamon] has met his burden of proof in showing that [George's] conduct as to the execution of the various proposed judgments caused him unnecessary attorney fees and costs including those incurred as a result of having to file [a request for order] to enter judgment" and that George's "conduct warrants the imposition of attorney fees and costs as sanctions." The order set forth a list of all of the documents that the court considered in reaching its ruling, which included (1) the documents submitted by Deamon in a notice of lodgment and referenced in his declarations; and (2) the package of documents submitted by George at the hearing on the sanctions motion.

George timely filed a notice of appeal from the order imposing sanctions.

II.

DISCUSSION

George's appeal relies on a procedural challenge to the family court's order

247 Cal.Rptr.3d 423

awarding sanctions. Citing the provisions concerning live witness testimony in section 217, George contends that the family court improperly based its ruling on the declarations and documents submitted by Deamon rather than requiring that Deamon provide live testimony to support his sanctions motion. George argues that under section 217, she had the right to present live testimony, including the right to cross-examine Deamon about the

35 Cal.App.5th 481

matters set forth in his declaration. According to George, because no live testimony was presented, the court's sanctions order was not proper.⁵

Section 217 provides as follows:

"(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.

"(b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.

"(c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony. If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing." (§ 217.)

As the legislative history to section 217 provides, the statute "require[s] the court in a family law action to receive all live, competent, and relevant testimony at a hearing of an order to show cause or notice of motion, unless the parties stipulate otherwise or the court makes a finding of good cause to refuse to hear the testimony." ( Legis. Counsel's Dig., Assem. Bill No. 939 (2009-2010 Reg. Sess.).)

As George interprets section 217, she had a right to present live testimony at the sanctions hearing unless the family court found good cause to exclude the testimony. We agree to a point. As the plain language of section 217 makes clear, if George had followed the proper procedures to present live competent testimony within the scope of the hearing, she would have had a right to do so at the sanctions hearing unless the family court found good cause to exclude it. However, as we will explain, George did not follow the proper procedures here to ensure that Deamon's live testimony was available

35 Cal.App.5th 482

for the family court to receive at the sanctions hearing, and accordingly, the family court was not required to receive any such testimony.

Initially, we note that George has identified no rule that would require Deamon's presence—either in person or telephonically—at the sanctions hearing. Instead, as...