A.Y.K. v. O.K. (In re The Marriage of A.Y.K.)
| Docket Number | H049630 |
| Decision Date | 21 December 2023 |
| Parties | In re the Marriage of Ay.K. and O.K. v. O.K., Appellant. AY.K., Respondent, |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 2012-1-FL-162754
Lie J.
O.K (husband) appeals from the family court's postjudgment findings and order after a hearing granting respondent Ay.K (wife) reimbursements and attorney fees and denying his request for reimbursements, attorney fees, and sanctions.[1] On appeal, husband argues that the court denied him of a fair hearing by limiting his time and ability to present evidence. He further argues the court abused its discretion by failing to award him attorney fees even though he prevailed when opposing wife's motions to quash declining to consider his argument that his obligation to reimburse wife for half the cost of daughter A.K.'s attendance at a therapeutic boarding school should be reduced in part by his payment of base child support for the same time period, and awarding wife reimbursements while denying his request for reimbursements of the cost of health care premiums he had deducted from his support payments. We agree that the court erred by declining to consider husband's argument for a partial offset for child support paid against his share of A.K.'s boarding school expenses and reverse on that basis alone, but we find no merit in his other contentions.
Husband and wife married in 1999, separated in 2012, and terminated their marriage in 2013. In 2014, the parties entered a stipulated judgment (2014 judgment) as to certain reserved issues: the parties agreed to equally share the cost of their two minor children's health care insurance and unreimbursed health care expenses as set forth in an attached arbitration order. A Notice of Rights and Responsibilities (FL-192) included in the judgment described the procedure for obtaining reimbursements of the children's healthcare costs, including a requirement that the paying parent provide the nonpaying parent "an itemized statement of the charges that have been billed for any health-care cost" and "[p]roof of full payment." (Boldface omitted.)
Although the 2014 judgment included "a long[-]term custody plan" for continued joint legal and joint physical custody, it did not mark the conclusion of litigation. Starting in spring 2019, the parties' dispute over shared legal and physical custody produced a series of orders starting in August 2019 through October 2020; the court granted wife sole legal custody pending a custody evaluation by an expert appointed under Evidence Code section 730, issued orders following a hearing on the custody evaluation, then modified those orders on wife's ex parte request soon thereafter.
This custody litigation in turn occasioned the present litigation over attorney fees and reimbursement of A.K.'s uninsured medical and mental health care expenses that is the focus of this appeal.
In January 2021, wife filed a request for order (RFO) seeking $58,900 in attorney fees and $63,138 in reimbursements. Other than $6,049 in base child support payments, the bulk of the reimbursements wife claimed were for expenses wife incurred in exercising sole legal custody of the children-$8,900 for "medical expenses," $28,375 for A.K.'s wilderness program, $645 for "medical expenses," $16,468 for A.K.'s therapeutic boarding school tuition, $1,867 for travel expenses for A.K.'s placement at a wilderness program and her therapeutic boarding school, and $834 for wife and son B.K. to attend family therapy sessions with A.K.[2] Wife based her claim for attorney fees on Family Code sections 2030 and 2032[3] (authorizing an award of need-based fees upon a disparity in access to funds for legal representation) and section 271 ().
In June 2011, wife filed a second RFO seeking additional attorney fees and sanctions (the RFO included her motion to quash three of husband's nine subpoenas).
Later that June, husband filed his own RFO requesting attorney fees and sanctions under section 271 totaling $67,363.57, reimbursement of $20,000 in attorney fees already paid by husband, and reallocation of 50 percent of fees paid for the parties' 2020 custody evaluation.
In her responsive declaration, wife both opposed husband's request and also increased her request for attorney fees and reimbursements to now seek a total of $116,000 in attorney fees, $91,401 for A.K.'s wilderness and therapeutic schools, and $5,504 in medical reimbursements.
In a July 2021 responsive declaration to wife's RFO, husband both opposed wife's request for sanctions and additional reimbursements and requested that the family court "[o]rder [wife] to pay sanctions due to her conduct." Husband neither cited a statutory basis for this responsive request for sanctions nor specified the amount of sanctions he sought. Husband alleged in this responsive declaration that wife had failed to provide receipts for the medical and school expenses on which she based her reimbursement claims, failed to provide proof that she paid the expenses, and failed to provide documents showing payments by the children's insurance. Husband averred that he had paid wife all amounts that he owed and all his child support payments were current. He further argued that the base monthly support of $2,860 that he had been paying for A.K. "needs to be applied for her benefit" against the claimed therapeutic boarding school expenses and that wife would otherwise be "unjustly enriched by receiving child support for a child who is not living with her, and also having me pay all school and therapy expenses."
In another responsive declaration filed in August 2021, husband again requested attorney fees without referencing a particular amount or statute. As justification, he cited the court's August 2020 custody order that wife collaborate and communicate with husband about A.K.'s progress in treatment, which order he asserted that wife had violated by blocking him from access to basic information about A.K. In furtherance of his request for sanctions, husband issued subpoenas to nine of A.K.'s mental health care providers and schools, seeking "records [that] pertain to: [A.K.]" and writings and evidence of "all communications from [wife], including but not limited to, [wife's] instructions for communicating with [husband]." In May and June 2011, wife moved to quash each subpoena, arguing that the documents that husband sought were privileged and not discoverable. Husband opposed the request and asked the court to sanction wife with an award of fees, again without citing to any particular statutory basis.
At an April 2021 status conference, before husband had filed any RFO of his own, the court scheduled wife's January 2021 RFO for a one-hour hearing in August 2021. Although husband had objected at the status conference to the adequacy of the one-hour limit, he later requested that his own RFO be heard in that same session, and the court accommodated his request. Husband later requested that the matter be set for a one- or two-day hearing.
At the first consolidated hearing, husband's counsel "reiterat[ed] the request that this be sent to long cause," noting she had "said at each and every appearance this matter is more than one hour." The family court thereafter determined that "we can get through the reimbursement issues" and assured counsel that "[c]ertainly, if we need to reset the attorney's fees, we can do so."
Wife's counsel proceeded by offer of proof, over husband's objection and subject to cross-examination. Through counsel, wife represented the following: She believed the wilderness program was in A.K.'s best interest, so wife incurred $56,750 in associated expenses. A.K. then went to a therapeutic boarding school costing $73,135, and then to a different therapeutic boarding school where wife spent $57,157. Wife sought reimbursement for half the total, or $93,902. As for the Notice of Rights and Responsibilities, the "family did not follow it" and that in the years when the parents were collegial with each other, they never gave each other receipts and relied on sending emails and transferring money back and forth between each other. As for the parties' respective incomes, husband earned $423,000 per year as a company vice president and had additional income from eight rental properties, while wife earned $12,630 per month as a self-employed tax attorney, spending "her life savings" to pay A.K.'s expenses.
On cross-examination, wife admitted that she never exchanged proof of payment with husband. Wife said that proof of payment for expenses was upon request, but that husband never made a request.
Before husband's counsel finished her cross-examination, the family court informed counsel that only 15 minutes remained in the hearing. The court indicated that if husband's counsel wanted to continue husband's motion to another day, the court could do so, but otherwise the court would "like to utilize this time moving forward substantially." Husband's counsel indicated that she would call husband to testify "over objection" because she was "not being permitted to present the evidence in [her] case regarding [wife's] conduct."
Husband then testified that although he requested as early as March 2020 that wife provide receipts, explanations of benefits and documents providing proof of payment, he received only some credit card summaries. In two instances, husband did not learn that A.K. had transferred to new therapeutic boarding...
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