Marriage of Seaman & Menjou, In re

• Citation: 2 Cal.Rptr.2d 690,1 Cal.App.4th 1489
• Parties: In re the MARRIAGE OF Charles H. SEAMAN, II, and Patti Anne Menjou. Charles H. SEAMAN, II, Appellant, v. Patti Anne MENJOU, Respondent. A048140.
• Decision Date: 18 December 1991
• Court: California Court of Appeals

Page 690

2 Cal.Rptr.2d 690

1 Cal.App.4th 1489

In re the MARRIAGE OF Charles H. SEAMAN, II, and Patti Anne Menjou.

Charles H. SEAMAN, II, Appellant, v. Patti Anne MENJOU, Respondent.

A048140.

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

Dec. 18, 1991.

Review Denied March 26, 1992.

[1 Cal.App.4th 1491] Robert D. McGuiness, Oakland, for appellant.

Eileen Preville, Alameda, for respondent.

KLINE, Presiding Justice.

Charles H. Seaman, II, appeals from an order of the family law court in a dissolution action awarding his former wife attorney's fees in a separate juvenile court action, In re Marjorie S. (Jan. 29, 1991) A046829 [nonpub op.]. He contends the trial court lacked jurisdiction to order such fees and the award denied him procedural due process.

STATEMENT OF THE CASE AND FACTS

On September 23, 1987, appellant filed a petition for the dissolution of his marriage to respondent, Patti Sue Menjou. The events which preceded the dissolution were the subject of an earlier appeal from a juvenile court action that resulted in the establishment of dependencies for the couple's two children, J. and H. In May of 1987, J., then three years old, related a dream which led respondent to believe appellant had molested her. Respondent, who had herself been molested as a child, reported the possible molestation to the Alameda County Children's Protective Service (CPS) in June. CPS closed its case in July, after which respondent made additional reports in July and September but the case was not reopened, the agency noting concerns that respondent had contaminated the child's statement due to her obsession with molestation issues.

Pursuant to the parties' agreement, Dr. Linda Campbell began to assess the family in June of 1987. Campbell was unable to determine whether Jorie had been molested and was very concerned that respondent's emotional involvement in the situation was causing the child harm. She last saw the family in October because respondent no longer wanted her to work on the case.

In November 1987, the court appointed Dr. Ricardo Hofer, a clinical psychologist, to assess the family and make recommendations regarding custody and visitation. Hofer concluded there was a low probability J. had actually been sexually molested and a probability respondent was overidentifying or merging with J., and felt respondent's affect was hurting the children as much as any possible molestation. Pursuant to Hofer's evaluation, the court ordered joint physical custody of the children, with the children spending two nights at a time with each parent on a rotating basis.

In June 1988, CPS reopened its investigation because J. was continuing to make statements regarding molestation to her day care provider, the emergency response worker and the child welfare worker. A petition was filed on August 6, 1988, and amended on February 24, 1989, alleging that J. and H. came within the provisions of Welfare and Institutions Code section 300 in that appellant had sexually molested and frightened the minors and respondent was causing them emotional damage because of her preoccupation with the molest and was unable to properly care for them. After a jurisdictional hearing which continued over the course of 16 court days, the juvenile court found that J. was suffering or at substantial risk of suffering serious emotional damage as a result of appellant having sexually molested her and threatened her in various ways if she told of the molest; respondent was preoccupied with the sexual molest and her repeated discussions of sexual behavior in the minors' presence was causing them damage; and H. had suffered extreme anxiety from appellant's wearing frightening masks in his presence. At a dispositional hearing on May 31, the court declared the minors dependent children of the juvenile court, removed them from their parents' custody and committed them to the Alameda County Social Services Agency for supervision in respondent's home with regular visitation for appellant.

On July 6, 1989, respondent's attorney in the dependency proceeding, Christopher F. Emley, filed a memorandum of law in the dissolution action seeking to have appellant Meanwhile, appellant had appealed to this court from the judgment in the dependency action. In an unpublished opinion, we concluded that the trial court erred in admitting certain testimony without requiring a foundation pursuant to the principles of People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 and Frye v. United States (D.C.Cir.1923) 293 F. 1013 and, finding the case "extraordinarily close," reversed the judgment.

pay respondent's fees and costs in the dependency action. The court found respondent had incurred legal expenses exceeding $50,000 in the dissolution and dependency actions. Finding that both parties were to blame for the harm to the children but that respondent's flowed from and was outweighed by appellant's, and considering the parties relative financial positions, the court ordered appellant to contribute $40,000 toward payment of the fees, of which $25,680 was for Emley's fees. ¹ Appellant filed a timely notice of appeal on December 11, 1989.

DISCUSSION

The question we are called upon to address in this appeal is whether a trial court in a dissolution action may order one spouse to pay a portion of the other's attorney's fees incurred in the course of defending a dependency proceeding under Welfare and Institutions Code section 300. Appellant contends the trial court erred in concluding it could make such an order either under the authority of Civil Code section 4370 ² or according to the principle that a wrong-doing spouse may be held solely responsible for community debts incurred as a result of his or her wrongdoing. (In re Marriage of Stitt (1983) 147 Cal.App.3d 579, 195 Cal.Rptr. 172.) ³

I.

Section 4370, subdivision (a), provides in pertinent part as follows: "During the pendency of any proceeding under this part, the court may order any party, except a governmental entity, to pay such amount as may be reasonably necessary for the cost of maintaining or defending the proceeding and for attorneys' fees; and from time to time and before entry of judgment, the court may augment or modify the original award for costs and attorneys' fees as may be reasonably necessary for the prosecution or defense of the proceeding or any proceeding related thereto, including after any appeal has been concluded." (Italics added.)

By its reference to proceedings "under this part," section 4370 specifies that it applies to proceedings under the Family Law Act ("FLA"). (Brink v. Brink (1984) 155 Cal.App.3d 218, 223, 202 Cal.Rptr. 57.) The language italicized above, however, expands the coverage of the statute to "any proceeding related to" a proceeding under the FLA. Since a proceeding under Welfare and Institutions Code section 300 falls under the Juvenile Court Law rather than the FLA, an award of fees under section 4370 is appropriate in the present case only if a dependency proceeding may be considered "related" to the dissolution action under the FLA. ⁴ We find little guidance on this question in the case law. The cases offered by the parties are not helpful. Brink v. Brink, supra, 155 Cal.App.3d at p. 223, 202 Cal.Rptr. 57, held fees properly denied to a former spouse who moved to vacate a community property award in an independent action in equity because such an action was not one under the FLA; the court did not discuss section 4370's reference to "related" proceedings. Guardianship of Paduano (1989) 215 Cal.App.3d 346, 350-352, 263 Cal.Rptr. 589, found fees appropriate where a guardianship proceeding was consolidated with a dissolution action involving the question of custody of the same child, again without discussion of the language regarding related proceedings. In re Marriage of Green, supra, 213 Cal.App.3d 14, 28, fn. 8, 261 Cal.Rptr. 294, simply stated that whether other proceedings are "related" to a dissolution within the meaning of section 4370 is a question of fact for the trial court without expressing a view on the issue.

The few cases we have discovered that directly address the "related" proceeding language do not interpret it in a manner that provides us guidance but simply make judgment calls as to whether the particular actions involved were "related" to the underlying divorce. Thus, in Gottlieb v. Gottlieb (1957) 155 Cal.App.2d 715, 318 P.2d 763, after a divorce and property settlement agreement, the former wife filed in the divorce action a writ of execution stating her former husband owed certain sums of money. The former husband filed an action for malicious abuse of process alleging that his former wife had known he was not in arrears when she sought the writ. The court held fees inappropriate because, assuming all the allegations of the complaint for malicious abuse of process were true, the action was "based solely on the alleged tortious conduct of the former wife" and therefore was not "related to" and did not "[grow] out of" the divorce action. (Id., at p. 719, 318 P.2d 763.) In Crook v. Crook (1960) 184 Cal.App.2d 745, 7 Cal.Rptr. 892, a former wife was awarded fees on the former husband's appeal from a judgment disposing of certain property the couple had held as joint tenants. In response to the former husband's argument that the divorce court had no power to dispose of property held in joint tenancy, the appellate court found the issue properly joined and determined in the divorce action and, accordingly, fees appropriate under the "relating to" language. (Id., at pp. 749-750, 7 Cal.Rptr. 892.) ⁵

"Relate" is defined in Webster's New Collegiate Dictionary (1977) as "to show or establish logical or causal connection between" or "to have relationship or connection: Refer." ⁶ This definition is so general that precise enumeration of the types of proceedings within the purview of section 4370 is impossible; a logical connection...