Filed 11/27/23 Marriage of C.D. and G.D. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re Marriage of C.D. and 2d Civil No. B320004
G.D. (Super. Ct. No. D388847)
(Ventura County)
C.D.,
Appellant,
v.
G.D. et al.,
Respondents.
C.D. (Mother) appeals from two postjudgment orders, one
granting a request from G.D. (Father) for attorney fees to
prosecute his appeal in a related case, and a second directing her
to resume therapy for their minor daughters. Mother contends
the former order must be vacated because Father did not file a
written request for appellate fees or demonstrate that his appeal
was based on reasonable grounds or good faith, and because the
fee award was unreasonable. She contends the latter order must
be vacated because she has exclusive authority to determine
whether to send her daughters to therapy. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Mother and Father married in 2013. Their twin daughters,
F.D. and S.D., were born four years later. Soon thereafter,
Mother petitioned to dissolve the marriage. The trial court
approved the dissolution petition and, after finding that Father
had sexually abused F.D. and S.D., granted Mother sole legal
custody. The court also barred Father from visiting his
daughters, and entered a domestic violence restraining order
forbidding him from contacting them or Mother for five years.
We affirmed the judgment on appeal. (In re Marriage of C.D. &
G.D. (2023) 95 Cal.App.5th 378, 387 (C.D. & G.D. I).)
In subsequent proceedings, the trial court awarded Father
$50,000 in attorney fees to prosecute his appeal of the judgment
regarding custody and visitation issues. It also ordered Mother
to resume F.D. and S.D.’s therapy with N.L., the therapist who
worked with them throughout the dissolution proceedings.
DISCUSSION
The attorney fee award
Mother contends the trial court erred when it granted
Father’s appellate attorney fee request because he did not make
his request in writing, he did not show reasonable grounds or
good faith for appeal, and/or the amount of the fee award was
unreasonable. We disagree.
1. Background
While the judgment on custody and visitation issues was
pending, Father, then proceeding in pro. per., requested $50,000
to “pay for [his] attorney fees and costs in this legal proceeding”
2
and “to hire an attorney in a timely manner before the
proceedings in the matter go forward.” In support of his request,
Father asserted that Mother had an annual income nearly double
his. He said that he had paid nearly $87,000 in attorney fees to
date (both from his own income and with loans from his parents),
and still owed nearly $6,000. He needed the $50,000 because the
sexual abuse allegations against him had “done irreparable
damage to [his] ability to earn income” and “prevent[ed] [him]
from hiring appropriate legal counsel.” He had been terminated
from his teaching position, and lost employment opportunities as
a security contractor.
Mother responded to Father’s request after judgment was
entered. She argued the request was moot because Father
sought fees in a matter that had already been litigated.
At the hearing on Father’s request, he argued the $50,000
was now needed to prosecute an appeal. Father said the amount
sought was based on what counsel had told him would be
necessary to pursue his appeal. He did not initially request
appellate fees because he made his request prior to the entry of
judgment.
Mother argued the trial court should deny Father’s request
because her only source of income was from the government; all
her legal fees in the dissolution and custody proceedings had
been paid by her parents. Additionally, Father’s request was
silent on the matter of any appeal; appellate fees were mentioned
for the first time at the hearing on his request.
The trial court awarded Father $50,000 in attorney fees, to
be used “exclusively for the purpose of providing [him] with the
financial resources necessary and appropriate to prosecute his
appeal” of the judgment on custody and visitation issues. The
3
court found that Mother had the ability to pay the fees because
her parents did not expect to be repaid for what they had paid in
the dissolution proceedings. That money could be deemed a gift
to Mother and imputed to her as income.
Mother moved the trial court to reconsider its attorney fee
order. She argued the award was improper because Father did
not provide notice of his request for appellate fees, which
deprived her of the ability to argue against them. She also
argued that had she known appellate fees were at issue she
would have provided more information about her inability to pay
and the fees that had been paid by her parents. Additionally,
Mother noted that Father had not stated the basis for his appeal,
nor had he “provide[d] any facts or information from which the
[c]ourt could determine that the appeal was filed in good faith[]
and with reasonable grounds.” The court denied Mother’s
motion.
2. Analysis
“Litigants to a spousal dissolution may request appellate
attorney fees under [Family Code1] section 2030.” (In re
Marriage of Nakamoto & Hsu (2022) 79 Cal.App.5th 457, 473-474
(Nakamoto & Hsu).) Before a court grants such a request, “ ‘four
conditions must be met: (1) the requesting spouse must show a
need for the award; (2) the paying spouse must have the ability to
pay the fees; (3) the appeal must be taken in good faith; and (4)
there must be reasonable grounds for the appeal in the sense that
reasonable persons should believe that the contentions merit the
appellate court’s attention and resolution.’ ” (Id. at p. 474.) We
review an award of attorney fees under section 2030 for abuse of
discretion. (Nakamoto & Hsu, at p. 474.) A trial court abuses its
1 Statutory references are to the Family Code.
4
discretion if its decision “ ‘exceeded the bounds of reason.’ ”
(Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449.) Awarding
attorney fees “ ‘without making any inquiry into the
reasonableness of those fees’ ” exceeds the bounds of reason. (In
re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 112.)
Mother first claims the trial court abused its discretion
when it granted Father’s appellate attorney fee request because
he did not make that request in writing. (See § 2031, subd. (a)(1)
[attorney fee requests must generally be made by noticed motion
or order to show cause].) But Mother did not challenge Father’s
request on this basis during the proceedings below. She cannot
do so for the first time on appeal. (Johnson v. Greenelsh (2009)
47 Cal.4th 598, 603.)
Mother next claims the trial court erroneously granted
Father’s fee request because he did not specify how he met the
third and fourth factors delineated in Nakamoto & Hsu, supra, 79
Cal.App.5th at page 474. Mother is correct that Father did not
describe how he met these factors during the proceedings below.
But that is not the same as showing that he did not meet them.
The trial court’s order awarding Father appellate attorney
fees is presumed correct. (In re Marriage of Arceneaux (1990) 51
Cal.3d 1130, 1133 (Arceneaux).) And absent evidence to the
contrary, we presume the court knew and correctly applied the
law when it issued that order. (People v. Jones (2017) 3 Cal.5th
583, 616.) In her briefs on appeal, Mother has not shown how she
overcomes either of these presumptions.
Nor, in our view, could Mother overcome them. The fees
Father requested were used to prosecute his appeal in C.D. &
G.D. I, supra, 95 Cal.App.5th 378. There was no indication that
that appeal was frivolous or taken solely for delay. To the
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contrary, it required us to analyze the interplay of multiple
provisions of the Family Code, and resulted in a published
opinion. Those issues warranted this court’s attention and
resolution. Father’s request thus met the prerequisites for an
award of appellate attorney fees. (Cf. In re Marriage of Davis
(1983) 141 Cal.App.3d 71, 78 [appellate court made findings of
good faith and reasonable grounds for appeal].)
Finally, Mother claims the fee award is unreasonable and
should be vacated because Father did not “provide the [trial]
court with sufficient information about [his] attorney’s hourly
billing rate; the nature of the litigation; [his] attorney’s
experience in the particular type of work demanded; the fees and
costs incurred or anticipated; and why the requested fees and
costs [were] just, necessary, and reasonable.” (Cal. Rules of
Court, rule 5.427(b)(2).) But Father did provide some of that
information at the hearing on his fee request. And our sister
courts have permitted parties to potentially recover attorney fees
despite noncompliance with rule 5.427. (See, e.g., C.T. v. K.W.
(2021) 71 Cal.App.5th 679, 683; N.S. v. D.M. (2018) 21
Cal.App.5th 1040, 1054.)
Additionally, a court is not limited to the information set
forth in rule 5.427 when determining the reasonableness of an
attorney fee request. “When apprised of the pertinent facts,
the . . . court may rely on its own experience and knowledge [to]
determin[e] the reasonable value of [an] attorney’s services.”
(Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1507; see also
In re Marriage of Cueva (1978) 86 Cal.App.3d 290, 300.) The trial
court here did just that. The court was assigned to this case in
October 2018. Though it did not handle the trial on custody and
visitation issues that was the subject of the appeal in C.D. & G.D.
6
I, the court did handle several other matters between the parties
between its original assignment and the award of attorney fees.
This belies Mother’s suggestion that the court did not have
sufficient knowledge of the case to determine the reasonable
value of the services required to prosecute an appeal. There was
no abuse of discretion.
The therapy order
Mother next contends the trial court erred when it ordered
her to resume her daughters’ therapy with N.L. because, as the
parent with sole legal custody, she has the exclusive right to
decide whether and under what conditions F.D. and S.D. receive
therapy. We conclude that Mother has forfeited this contention.
We also disagree with it on the merits.
1. Background
At a hearing on April 7, 2022, the trial court asked whether
F.D. and S.D. were still in therapy. Mother’s counsel said that
therapy was in a hiatus. The court asked if Mother planned to
resume the girls’ therapy with N.L. Counsel replied, “Yes. I
believe that is part of the plan. Yes.” The court then asked if
anyone would object to it ordering therapy with N.L. When
neither counsel nor Mother—who was present at the hearing—
objected, the court ordered Mother to resume her daughters’
therapy with N.L. at biweekly intervals.
Upon learning that Mother had not obeyed the trial court’s
order, F.D. and S.D.’s appointed counsel requested an order that
Mother make a therapy appointment for the girls within 48
hours. Mother opposed the request in a filing dated April 26,
claiming her attorney had mistakenly consented to therapy with
N.L. at the April 7 hearing. She had selected a new therapist
and scheduled an initial evaluation prior to that hearing, but
7
neglected to inform counsel that she had done so. Additionally,
Mother claimed her daughters were thriving without therapy,
and, based on advice from her own therapist (who did not
interview F.D. or S.D.), she was worried that resuming therapy
with N.L. would remind them of their sexual abuse.
After a May 2 hearing on appointed counsel’s request, the
trial court ordered F.D. and S.D. to resume therapy with N.L.
within 10 days.
2. Analysis
“ ‘ “ ‘ “No procedural principle is more familiar to this
[c]ourt than that a constitutional right,” or a right of any other
sort, “may be forfeited in criminal as well as civil cases by the
failure to make [a] timely assertion of the right before a tribunal
having jurisdiction to determine it.” ’ ” ’ ” (People v. Harrison
(2013) 57 Cal.4th 1211, 1229.) Mother did not follow that
principle here. Though she was present at the April 7 hearing—
during which her attorney agreed that F.D. and S.D. would
resume therapy with N.L.—Mother did not object. She then
initiated no proceedings after that hearing to notify the trial
court that she objected to resuming therapy with N.L. It was not
until F.D. and S.D.’s appointed counsel asked the court to order
the girls to resume therapy—weeks later—that Mother finally
objected to therapy with N.L. Such an untimely objection forfeits
the issue on appeal. (Ibid.)
Mother’s challenge to the therapy order also lacks merit. A
trial court may require children involved in custody disputes to
participate in therapy, for up to one year, if it finds that: (1) there
is a dispute between the parents that “poses a substantial danger
to the [children’s] best interest[s],” and (2) therapy is in the
children’s best interests. (§ 3190, subd. (a).) When ordering
8
therapy, the court must state why “the dispute poses a
substantial danger to the [children’s] best interest[s],” why
therapy is in their best interests, and why any financial burden
caused by the therapy order “does not otherwise jeopardize a
party’s other financial obligations.” (Id., subd. (d).)
The trial court did not make the required findings at the
May 2 hearing. But as an appellate court, we do not reject
defective rulings “ ‘where an objection could have been but was
not presented to the lower court by some appropriate method.’ ”
(Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184,
fn. 1.) It “ ‘is simply . . . unfair to the trial judge and to the
adverse party to take advantage of an error on appeal when it
could easily have been corrected at the trial.’ ” (Ibid., italics
omitted.)
Mother attended the May 2 hearing. But she did not ask
the trial court to make the findings required by section 3190,
subdivision (d). The lack of findings thus does not undermine the
propriety of the trial court’s therapy order.
Moreover, a trial court’s order is “presumed to be correct on
appeal,” and “all intendments and presumptions are indulged in
favor of its correctness.” (Arceneaux, supra, 51 Cal.3d at p. 1133.)
We also presume the court “consider[ed] all of the relevant
statutory factors and made all of the factual findings necessary to
support” it. (Brewer v. Carter (2013) 218 Cal.App.4th 1312,
1320.) Any “ ‘failure to make a material finding on an issue
supported by the pleadings and substantial evidence’ ” will
accordingly be deemed “ ‘harmless when the missing finding may
reasonably be found to be implicit in other findings.’ ” (In re
Marriage of Lusby (1998) 64 Cal.App.4th 459, 470 (Lusby).)
9
Here, substantial evidence supports the trial court’s
implied findings. First, the dispute between Mother and Father
poses a substantial danger to the best interests of F.D. and S.D.
These proceedings started five years ago—when the girls were
not yet two years old—and have included allegations of sexual
abuse, fights over schooling, and financial disputes. Mother has
also challenged Father’s therapeutic visitation with the girls.2
Second, all parties agree that therapy would be in F.D.’s
and S.D.’s best interests; Mother just wants them to see a
therapist other than N.L. But the girls have a long history of
therapy with N.L., having seen her since they began exhibiting
sexual behaviors outside the norm for girls their age. The
mediator also recommended that the girls resume therapy with
N.L. The trial court was entitled to follow that recommendation
over Mother’s tardy assertion that her therapist recommended a
different therapist. (Wells Fargo Bank, N.A. v. 6354 Figarden
General Partnership (2015) 238 Cal.App.4th 370, 392 [trial court
may reject expert opinion].)
Finally, the evidence indicates that any burden caused by
the therapy order will not otherwise jeopardize Mother’s other
financial obligations. The trial court heard arguments over
Father’s request for appellate attorney fees just one month before
it ordered F.D. and S.D. to resume therapy with N.L., and was
aware of the parties’ financial resources and obligations. And
when she objected to the therapy order, Mother did not claim that
her obligations had changed in any way; other than stating that
2 On our own motion, we have taken judicial notice of
Mother’s pending appeals in case numbers B322858 and
B325287. (Adelman v. Associated Internat. Ins. Co. (2001) 90
Cal.App.4th 352, 356, fn. 2.)
10
N.L. does not take her insurance, she did not discuss her
finances. We thus conclude that the court’s failure to make the
findings required by section 3190, subdivision (d), was harmless.
(Lusby, supra, 64 Cal.App.4th at p. 470.)
Mother also argues that, as the parent with “sole legal
custody,” she has the exclusive right to make decisions related to
the health and welfare of her daughters, including whether and
under what conditions to send them to therapy. (Citing § 3006.)
This argument contradicts section 3190. It also ignores the
courts of this state’s continued interest in the welfare of children.
Nearly a century ago, our Supreme Court explained that, in
dissolution matters, a court retains an interest in and jurisdiction
over “the custody, care, and maintenance of . . . minor
children . . . during their . . . minority.” (Moore v. Superior Court
(1928) 203 Cal. 238, 242-243.) This is because “the judgment of
[dissolution,] insofar as it relates to the custody and maintenance
of minor children[,] is not final” but instead “must be regarded as
still pending.” (Reynolds v. Reynolds (1943) 21 Cal.2d 580, 584.)
Thus, in custody matters, a court retains jurisdiction to monitor a
child’s welfare. (In re Marriage of Kreiss (2004) 122 Cal.App.4th
1082, 1084-1085.) Ordering Mother to resume F.D. and S.D.’s
therapy with N.L. falls squarely within the trial court’s power.
This conclusion does not conflict with our opinion in In re
Marriage of C.D. & G.D. (2023) 95 Cal.App.5th 433 (C.D. & G.D.
II).) In that case, the trial court granted Father’s request for an
order directing Mother to send F.D. and S.D. to public school.
(Id. at p. 436.) On appeal, Mother argued the court erroneously
granted that request because she, as the parent with sole legal
custody, had the exclusive right to make decisions about her
daughters’ education. (Id. at pp. 436-437.) We agreed the court
11
should not have granted Father’s request because, to have input
on his daughters’ education, Father first had to obtain joint
custody, something he did not do. (Id. at p. 438.)
In contrast to C.D. & G.D. II, supra, 95 Cal.App.5th 433,
here, it was not Father who requested an order directing Mother
to resume their daughters’ therapy with N.L.; it was the trial
court that issued the order—initially with Mother’s agreement,
then after a request from the girls’ appointed counsel. And
unlike the situation in C.D. & G.D. II, where Father did not have
a right to dictate matters related to his daughters’ education,
here, the trial court had inherent authority to supervise the girls’
welfare. It also had authority vested in it by the Legislature,
through section 3190, to order Mother to resume her daughters’
therapy with N.L.
DISPOSITION
The trial court’s order awarding G.D. $50,000 in appellate
attorney fees, entered March 4, 2022, is affirmed. The order
directing C.D. to resume F.D. and S.D.’s therapy sessions with
N.L., entered May 2, 2022, is also affirmed. G.D. shall recover
his costs on appeal.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J. YEGAN, J.
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John R. Smiley, Judge
Superior Court County of Ventura
______________________________
Law Offices of Jeffrey A. Slott, Jeffrey A. Slott; The Law
Office of Greg May and Greg May for Appellant.
Taylor, McCord, Praver & Cherry, Patrick G. Cherry;
Ventura Coast Law and Douglas K. Goldwater for Respondent
G.D.
Amanda Sanderson and Andrew Wolf for Respondents F.D.
and S.D.