Guardianship of Paduano

• Decision Date: 07 November 1989
• Docket Number: No. B037168,B037168
• Citation: 263 Cal.Rptr. 589,215 Cal.App.3d 346
• Court: California Court of Appeals Court of Appeals
• Parties: Linda PADUANO, Intervenor and Appellant, v. Sabrina PADUANO, Plaintiff and Respondent, Robert Paduano, Respondent.

Page 589

263 Cal.Rptr. 589

215 Cal.App.3d 346

Linda PADUANO, Intervenor and Appellant, v. Sabrina PADUANO, Plaintiff and Respondent Robert Paduano, Respondent.

No. B037168.

Court of Appeal, Second District, Division 3, California.

Nov. 7, 1989.

Neal R. Safran and Jay S. Rothman, Encino, for Linda Paduano, intervenor and appellant.

Frances E. Stivers-Huffaker, Sherman Oaks, for plaintiff and respondent.

No appearance for Robert Paduano.

DANIELSON, Acting Presiding Justice.

Linda Paduano (Linda) appeals ¹ from an order dated August 17, 1988, awarding attorney's fees and costs to Sabrina Paduano De Alba (Sabrina) in the amount of $10,000

pursuant to CIVIL CODE SECTION 4370², subdivision (a).

FACTUAL AND PROCEDURAL STATEMENT

On February 12, 1986, the Los Angeles County Superior Court, Northwest District branch, entered a judgment for dissolution of the marriage between Sabrina and Robert Paduano (Robert). Legal custody of their daughter, Jennifer Paduano (Jennifer), a minor, born August 2, 1981, was awarded jointly to Sabrina and Robert. Primary physical custody of Jennifer was awarded to Robert, and Sabrina was awarded secondary physical custody.

On December 17, 1987, the judgment was modified pursuant to stipulation to provide that primary physical custody was awarded to Sabrina, and secondary physical custody was awarded to Robert.

Also on December 17, 1987, Linda, Robert's sister and Jennifer's aunt, commenced another proceeding by filing a petition to be appointed guardian of Jennifer's person in the North Valley District branch of the Los Angeles Superior Court.

On December 30, 1987, Linda filed a supplement to the petition for appointment of guardian which contained representations by seven declarants to the effect that Jennifer had been subjected to physical and emotional abuse while in Sabrina's custody.

Supplement items 8 and 9, i.e., "Letters from Dr. E. Kent Ackley" and "Information for Guardianship Investigation Pursuant to 1543 Probate Code" are not in the record, which is an appellant's appendix.

Linda filed an amended petition for appointment of guardian on January 11, 1988.

On January 12, 1988, the Northwest District branch of the court ordered the guardianship proceeding pending in the North Valley District branch to be transferred to the Northwest District branch and consolidated with the dissolution proceeding pending in the Northwest District branch for further hearing of all issues.

On August 1, 1988, Sabrina's attorney, Frances E. Stivers-Huffaker filed a motion for attorneys' fees and costs, supported by a declaration setting forth the factual basis of Sabrina's claim for attorneys' fees and costs, in the amount of $11,145 and $141 respectively.

Following a hearing on August 2, 1988, the court denied Linda's petition for guardianship and ordered her to pay the cost of a probation report. The court expressly found: "It is not in the best interest of Jennifer to be taken from the custody of the parents and it is not a detriment to be in the custody of the parents. [p ] The parents and Bill Young are credible witnesses and their evidence shows mother's home is an appropriate place for the minor and the record is devoid of credible evidence that anything improper has been occurring against Jennifer.... [p ] Record is devoid of evidence of child abuse."

The court took Sabrina's motion for attorneys' fees under submission after argument.

On August 17, 1988, the court ruled that it had jurisdiction to award attorneys' fees and costs pursuant to section 4370, subdivision (a) (section 4370(a)), and ordered Linda to pay $10,000 as attorney's fees directly to Sabrina's attorney. In so doing, the court specifically found that Linda had the ability to pay such award, that the amount of fees and costs incurred by Sabrina exceeded $10,000, and that the award of fees and costs was necessary.

ISSUES PRESENTED

Two issues are raised in this appeal: (1) Does the court have jurisdiction to award attorneys' fees and costs pursuant to section 4370(a), where custody of a minor is at issue in a guardianship proceeding which has been consolidated with a family law proceeding?; and (2) If so, did the court abuse its discretion in awarding $10,000 as attorneys' fees and costs?

DISCUSSION

I. Propriety of Award of Attorneys' Fees and Costs under Section 4370(a) in a Guardianship Proceeding Consolidated with a Family Law Proceeding

The thrust of Linda's argument is that an award of attorneys' fees and costs against her, as the petitioner in a guardianship proceeding seeking guardianship of a minor, is not authorized by section 4370(a). She argues that the consolidation of the two proceedings did not convert the guardianship proceeding into a family law proceeding, and that section 4370(a) ³ authorizes the award of attorneys' fees and costs only in family law matters. As authority, she relies primarily on McClure v. Donovan (1949) 33 Cal.2d 717, 205 P.2d 17.

We find Linda's reliance on McClure, which is factually inapposite, to be misplaced. The McClure case involved the consolidation of an action to annul the marriage of Jefferson D. Caruthers to Laura Alpha Donovan, on the ground that Caruthers was mentally incompetent at the time of the marriage, with a proceeding to appoint Louis A. Ghiotto as guardian of Caruthers' person and estate on the ground of incompetency.

In McClure our Supreme Court held that where, as in that case, the order for consolidation was for the limited purpose of saving the court time by avoiding repetition of overlapping evidence on related issues, "separate findings and judgments must be made in each case in disposition of the particular issues as independently submitted." (McClure v. Donovan, supra, 33 Cal.2d at p. 722, 205 P.2d 17.)

In the present case the guardianship proceeding was not consolidated with the family law action solely to save the court time regarding repetitious evidence. Instead, consolidation was ordered because the primary subject matter, and the object of both proceedings, was the same: custody of the minor, Jennifer. Who is entitled to custody of the minor is the primary issue in a guardianship proceeding. (See, e.g., Guardianship of Smith (1957) 147 Cal.App.2d 686, 691, 693, 306 P.2d 86.) "Custody" is defined as "[t]he act or right of guarding, esp. such a right granted by a court." (The American Heritage Dictionary (2d college ed. 1982) p. 357; E.W. Bliss Company v. Superior Court (1989) 210 Cal.App.3d 1254, 1258, fn. 2, 258 Cal.Rptr. 783.) In a family law proceeding the court "has jurisdiction to inquire into and render any judgment and make such orders as are appropriate concerning ... the custody and support of minor children of the marriage ... and the award of attorneys' fees and costs...." (§ 4351.)

The standard for awarding custody of a minor child of a marriage is the same whether the issue of custody arises in a guardianship proceeding or a custody proceeding in a dissolution action. "Before the court makes any order awarding custody to a person or persons other than a parent, without the consent of the parents, it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interests of the child." (§ 4600, subd. (c); In re B.G. (1974) 11 Cal.3d 679, 694-695, 114 Cal.Rptr. 444, 523 P.2d 244.) It is therefore clear Accordingly, in the case at bench, since custody of the minor child of the marriage was the basic issue in both proceedings, no separate findings or judgments were appropriate, and none were made in the respective consolidated proceedings. (See McClure v. Donovan, supra, 33 Cal.2d 717, 721-722, 205 P.2d 17; see generally, Code Civ.Proc., § 1048, subd. (a); ⁴ cf. Walker v. Walker (1960) 177 Cal.App.2d 89, 91-92, 1 Cal.Rptr. 871.)

that the parents of a minor of a marriage are entitled to preference over a nonparent in either a guardianship proceeding or a custody proceeding in a dissolution action. (See Guardianship of Smith (1954) 42 Cal.2d 91, 92, 265 P.2d 888.)

It...