In re Marriage of Falcone & Fyke

• Decision Date: 08 July 2008
• Docket Number: No. H031524.,H031524.
• Citation: 164 Cal.App.4th 814,79 Cal. Rptr. 3d 588
• Court: California Court of Appeals Court of Appeals
• Parties: In re the Marriage of RICHARD S. FALCONE and KATHEY FYKE. RICHARD S. FALCONE, Respondent, v. KATHEY FYKE, Appellant.

164 Cal.App.4th 814 79 Cal. Rptr. 3d 588 In re the Marriage of RICHARD S. FALCONE and KATHEY FYKE. RICHARD S. FALCONE, Respondent,
v.
KATHEY FYKE, Appellant. No. H031524. Court of Appeals of California, Sixth District. July 8, 2008.

[164 Cal.App.4th 817]

Kathey Fyke, in pro. per., for Appellant.

Law Offices of Bernard N. Wolf, Bernard N. Wolf; Law Offices of Yates-Carter and Lynne Yates-Carter for Respondent.

OPINION

PREMO, J.

This is one in a series of 10 appeals or writ petitions filed in this court by Kathey Fyke, the respondent in a dissolution matter initiated by her former husband Richard S. Falcone in 2003. In this appeal Kathey¹ challenges orders dismissing her contempt motion against Richard. She also challenges orders imposing a total of $64,500 in sanctions against her for prosecuting the contempt motion without any factual or legal basis and for pursuit of a meritless motion for new trial. We conclude that Kathey has failed to affirmatively demonstrate any error warranting reversal. Accordingly, we shall affirm.

I. Factual and Procedural Background

A. Kathey's Contempt Motion

The challenged orders all flow from Kathey's motion charging Richard with contempt for failing to pay the full amount of child and spousal support mandated by a temporary child and spousal support order entered the year before. The temporary support order provided that Richard was to make monthly payments of base child and spousal support and "[a]ny additional income of [Richard's] over and above $17,000 monthly will be paid to [Kathey] pursuant to a Smith Ostler calculation." (See In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 37 [272 Cal.Rptr. 560] [affirming

164 Cal.App.4th 818

order for "additional support, based on a percentage of [husband's] future bonuses"].) Richard paid the base support, although he paid the full amount in one payment per month rather than half on the 1st and half on the 15th as specified by the order. Richard had not made any Smith-Ostler payments nor had Kathey ever asked the court to make a determination of arrearages.

The contempt motion was filed on Kathey's behalf by Counsel Paul Nesse on April 6, 2006. In it Kathey alleged that Richard's failure to make the base payments twice per month meant that Richard owed Kathey $153.50 in interest and that his failure to make the Smith-Ostler payments resulted in arrearages of more than $83,000. The motion listed the alleged defaults as 54 counts of contempt.

Richard's attorneys repeatedly asked Nesse to amend or dismiss the contempt motion, explaining that Richard could not be in contempt of the order for base payments since he had made those payments in full every month and that the Smith-Ostler part of the order was not specific enough to be enforced by contempt. Nesse refused to correct the motion. Richard's attorneys prepared motions in limine that they intended to present at trial of the contempt matter and personally served Nesse with copies of these motions on October 2, 2006. The in limine motions sought dismissal of the contempt counts pertaining to the base support orders since, as shown on the face of the motion, Richard had made those payments. The in limine motions also sought dismissal of the counts pertaining to the Smith-Ostler payments because the temporary support order did not specify how the calculation was to be applied or when the payments were to be made and, therefore, could not form the basis for a finding of contempt.

On November 7, 2006, after Kathey still refused to modify or withdraw the contempt motion, Richard served both Nesse and Kathey with copies of a proposed motion under Code of Civil Procedure section 128.7 (hereafter, section 128.7). The proposed motion sought sanctions for the pending contempt matter on the ground that the contempt motion had no legal or factual basis and had been filed solely to cause unnecessary delay and to increase the cost of the litigation. As required by section 128.7, the notice was not filed with the court but merely gave Kathey and her attorney notice of Richard's intent to seek sanctions if they did not withdraw or modify the contempt motion as they had repeatedly been requested to do.

On the same day Richard served his proposed section 128.7 motion, Nesse moved to withdraw from his representation of Kathey on the ground that Kathey had failed to pay his fees or replenish his retainer and because "[d]ifferences have arisen between Ms. Fyke and counsel as to the conduct of the case." The trial court granted Nesse's motion just days before the hearing on the contempt motion.

164 Cal.App.4th 819

B. The Hearing on the Contempt Motion (November 28, 2006)

At the outset of the hearing on November 28, 2006, Kathey asked for a continuance, claiming she needed time to find a new attorney. Having examined the papers on file, the trial court noted that the contempt motion "looks like you prepared it and directed your attorney to file it." The court further explained, "[I]t's my belief that you are aware—at least some time back in October—that there might be a likelihood that Mr. Ness[e] was not going to be your attorney here today. You appear to have been filing quite a few things on your own, even predating that point in time, such that I think your involvement and knowledge about this matter is very great. [¶] Also, you were aware that this was the date for the hearing. You are making requests on the day of the hearing that need to be brought notice-wise quite some time before, and I believe you had sufficient time to do that." Accordingly, the trial court denied Kathey's request for a continuance.

Kathey responded, "So in addition to asking for that continuance on the record, I would like to make a—it's a [Family Code section 2031, subdivision] (b) oral motion for attorney fees in the amount of $25,000. There is a recent I and E [income and expense declaration] on file for both parties, and with the $25,000 then I think it will expedite my getting an attorney." The court replied, "Well, your motion is denied, not only as to continuance but also for the attorney's fee request." The court explained that the motion was not timely: "Well, you are asking me in effect for attorney's—to continue this proceeding, give you attorney fees to hire someone to represent you at that continued date, and I'm saying that I'm not going to continue the proceeding. We are going to go forward today."

The trial court then granted Richard's in limine motions and dismissed the contempt motion with prejudice. Addressing Kathey, the court emphasized that although dismissal with prejudice meant she could not file another contempt motion, it "does not impair your ability with the proper motion to establish whatever obligation may exist and whatever appropriate period of time the statute would permit, and your pursuing collection."

At the close of the hearing, Richard's attorneys began discussing a date for a hearing on a motion for fees and sanctions against Kathey. The trial court set January 12, 2007, as the date for hearing the anticipated motion. Kathey again asked the court for an attorney's fees order so that she could hire counsel to defend herself against those motions. The court denied that request noting that there was no actual motion pending, all the court was doing was setting a date for a hearing.

164 Cal.App.4th 820

C. Richard's First Two Motions for Sanctions

On December 11, 2006, Richard served Kathey with a section 128.7 motion and filed it the following day. The motion was a revised version of the motion served on Kathey November 7, 2006. It contained an updated declaration of counsel describing the outcome of the contempt proceedings and attached the original motion that had been served on November 7, 2006, as exhibit No. 1. The motion was set to be heard, as the court had previously ordered, on January 12, 2007.

On January 2, 2007, Richard made a successful ex parte request for an order shortening time for notice of a motion under Family Code section 271, which, like the section 128.7 motion, sought sanctions for Kathey's prosecution of the contempt motion. Richard wanted the Family Code motion to be heard along with the section 128.7 motion set for January 12, 2007. The dual sanctions motions sought fees for Richard's two attorneys, Tracy Duell-Cazes, the attorney who represented Richard in the contempt proceedings, and Lynne Yates-Carter, Richard's family law attorney.

Counsel's declaration in support of the merits of the Family Code section 271 motion cited instances of Kathey's uncooperative behavior. Counsel stated that prior to the hearing on the contempt motion, at the mandatory settlement conference on November 22, 2006, Kathey was personally alerted to the defects in her contempt motion. Kathey refused to drop the motion unless Richard signed over the couple's Sunnyvale residence to her. According to counsel, the property had been recently appraised at $685,000 and had a loan against it of approximately $99,000. Richard declined the demand but offered to continue the hearing on the contempt motion. Kathey insisted upon...