Fifth District Also Assigns Matter to Different Judicial Officer Based On Appearance He Was Not Impartial.
Well, this next one is a doozy. You knew it would be when the appellate court intersperses these quotes: “Somewhere along the line, litigation must cease” (In re Marriage of Crook, 2 Cal.App.4th 1606, 1613 (1992)) and “trial of a case should not only be fair in fact, but it should also appear to be fair” (In re Marriage of Iverson, 11 Cal.App.4th 1495, 1500 (1992)).
The Fifth District, in the very pointed opinion of In re Marriage of Tharp, Case No. F057696 (Oct. 1, 2010) (certified for publication), reversed lower court orders denying fees and costs to wife and also ordered the dissolution matter assigned to a different judicial officer.
With respect to needs based fees under Family Code section 2030, the appellate court found that wife was much more impoverished in comparison to her husband who was heir to a network of businesses and whose expenses were paid for by at least of the one corporations. The family judge, after initially making rulings and comments indicating husband was not cooperative in discovery and was protracting the litigation, suddenly changed course, accusing wife of making the matter too complex (even though the judge also found the matter to be initially complex and that there was a disparity in income between the parties). Wife had spent upwards of $120,000 on the case, estimated spending over $300,000, but was only awarded $20,000 in increments—with the judge denying some requests based on allowing a lien against community property but then expunging the lien along the way. The Court of Appeal found that the trial court refused to review billings, which was an abdication of judicial function requiring a reversal and remand (this time, to a different judge).
Failure to grant fee sanctions under Family Code section 271 was also erroneous, because the trial judge first granted motions to compel but refused to award fees. Why would this happen unless husband was being uncooperative in the first place? Sanctions were warranted because the record showed husband was making the case more protracted and expensive in nature.
Fees were also awardable under Family Code section 2107(c), which allows monetary sanctions and fees to be imposed for breach of a spouse’s fiduciary duties in a marital dissolution proceeding. Husband stalled the litigation for 10 months by arguing there was a prenuptial agreement, one that never existed. He also failed to provide complete financial information.
Finally, the matter was reassigned to a different judicial officer based on the appellate court’s determination that there was doubt about the trial judge’s impartiality with respect to wife.
This 40-page opinion, on behalf of a 3-0 panel, was authored by Acting Presiding Justice Cornell.