PARSONS v. PARSONS (1990)

Sherri Louise Parsons appeals an order made after remand from this court (1) setting child support for Mollie, the daughter of Sherri and Charles Lowell Parsons, in the amount of $310, barely above the minimum allowed by Civil Code 1 section 4720 et seq. (the Agnos Act), (2) awarding Charles $10,000 in attorney's fees under section 4370.5, subdivision (b)(2), and (3) under the same section, setting off against the attorney's fees award an amount of $8,370 representing the total of child support arrearages calculated to be due from April 1, 1986, to the date of the hearing on July 11, 1988.

We conclude under the law of the case the trial court abused its discretion in fixing the amount of child support and it erred in awarding Charles attorney's fees along with the set-off of child support arrearage against the attorney's fees.

FACTS

A general description of the case is that since mid–1980, a little over two years after Mollie was born as a result of an extramarital affair between Charles and Sherri,² Mollie has been in the exclusive physical custody of Sherri.   The action began as a paternity action filed in the California Superior Court in 1979.   By a stipulation and order filed in February 1980, Charles's paternity and child support obligations were established and a visitation schedule was set forth.   Sherri retained the physical custody she had of Mollie since her birth.   There were problems with visitation.   Between approximately June 1980 and June 1985, the whereabouts of Mollie and Sherri was unknown, Sherri having left California and moved to New Jersey without revealing her location.³

In September 1980, after Sherri failed to appear at a July 1980 hearing regarding Charles's order to show cause requesting custody and an order restraining Sherri from moving Mollie from California without his consent, Charles obtained an order from the California Superior Court awarding the custody of Mollie to him.

In June 1985 Sherri was arrested for felony child concealment (Pen.Code, § 278.5) at her place of employment in Philadelphia.   Sherri was later convicted of the charge and granted probation.   Sherri declared she learned for the first time at a bail reduction hearing in Philadelphia that Charles had been granted custody by the California court.

Sherri filed a complaint and OSC in New Jersey to modify the California custody order and the New Jersey court, after hearing and denying Charles's motion to dismiss the New Jersey proceedings and to request the California custody order be enforced, awarded temporary custody to Sherri, among other orders.

In October 1985, Charles filed an OSC in the California case asking that Mollie be ordered to participate in psychological testing in California, that a reunification plan be established for him and his daughter and that Mollie be returned to his physical custody in California.   Sherri filed a motion to quash, which was denied, and a motion for reconsideration, which was also denied.   On Sherri's appeal to this court,⁴ in an opinion filed June 9, 1987, we held California had continuing jurisdiction over Mollie's custody at the time New Jersey modified the California custody order and that the trial court did not abuse its discretion in declining to relinquish its jurisdiction to New Jersey.  (Parsons v. Parsons, D004516 [nonpub. opn.].)

Sherri returned to the California superior court seeking child support, which was denied because the court believed she was frustrating Charles's visitation.   Sherri appealed, and in an opinion filed March 24, 1988, this court reversed with directions “to reconsider the request to enter a reasonable child support order for those periods during which Sherri has had lawful custody of the minor child of the parties from and after April 1, 1986․”  (Parsons v. Parsons, D005649 [nonpub. opn.].)  By reference to the trial court proceedings leading to the first appeal in D004516, this court determined that a trial court order of April 1, 1986, adopted a recommendation in a February 18, 1986, report filed by family counselors William J. Sheehan and Dr. Ruth Roth,⁵ and “[t]his order effectively stated custody was to remain with Sherri subject to reasonable visitations by Charles according to a schedule to be arranged by a licensed mental health professional in the southwest Jersey–Philadelphia area to be designated in accordance with terms of this order.”  (D005649.)  Again in the last opinion of this court we stated, “Confirmation of petitioner's right to custody is contained in the order of the California court of August 19, 1986,” (D005649) and “[a]t least as of April 1, 1986 and thereafter, Sherri's right to custody as against Charles pending final resolution of the case was confirmed by the California court.”  (D005649.)

The April 1, 1986, order of the superior court read:

“(3) Pursuant to stipulation of the parties through counsel, the Court adopts and incorporates herein by reference the report and recommendation of WILLIAM J. SHEEHAN and RUTH ROTH of Family Counseling Services contained in a letter dated February 18, 1986, a copy of which is attached hereto, and orders both parties to comply with the terms thereof.”

The Sheehan–Roth report of February 18, 1986, includes a paragraph stating:

“It appears to the undersigned that the reintroduction of the father into the child's life be conducted in a graduated fashion in which the child's capacity and comfort should be the determinants with regard to the duration and frequency of visitation, even more than the father's or mother's wishes.   It does not appear appropriate at this time, in terms of the child's development, to have the child placed immediately in the physical custody of her father.   Nor does it seem appropriate at this time to consider that the child should immediately have visitation with her father in California as opposed to the general area and vicinity of where she lives with her mother.”  (Italics added.)

We note a May 27, 1986, superior court order denying a stay of execution pending the appeal of the jurisdictional issue in D004516 includes an order referring to “the father's visitation with the child.”   Further, the August 19, 1986, order after a hearing of June 25, 1986, makes repeated references to “visitation” by Charles.

On June 20, 1986, Sherri filed an OSC seeking child support for Mollie.   At the review hearing on June 25, 1986, by an order filed August 19, 1986, Charles was awarded visitation with Mollie in California between August 16, 1986, and August 30, 1986.   After a hearing on August 28, 1986, pursuant to Sherri's OSC re child support, the superior court ordered:

“1. The court finds that Plaintiff has frustrated Defendant's visitation and, based on that finding, the court makes no child support order until the minor child has visited with Defendant in San Diego.

“2. The court further states that, once the child has so visited in San Diego, Plaintiff may come to the court, ex parte, to request child support.”

The last-quoted order which was formally filed December 8, 1986, was the subject of the reversal in this court's last previous decision in D005649, filed March 24, 1988, with remittitur issued May 24, 1988.

For purposes of the hearing on child support after the remittitur issued, Sherri, an office worker on medical leave of absence, asked for $800 per month child support for Mollie.   She informs that the San Diego County child support guidelines would indicate a monthly figure in excess of $1,700 would be due.   At a July 11, 1988, hearing the trial court considered income and expense declarations indicating that Charles, a physician, earned $12,500 per month and had a net disposable monthly income of $9,400, and that Sherri's sole source of income since July 1987 was worker's compensation in the amount of approximately $1,000 per month.   Referring to this court's opinion in D005649, the trial court stated and ruled on remand as follows:

“The Court:  The final statement says:

“ ‘The order denying child support is reversed and the matter is remanded to the superior court with directions to reconsider the request to enter a reasonable child support order for those periods during which Sherri has had’, and I don't know what this means, ‘lawful custody’.  [¶] Because according to this she didn't have lawful custody.   But according to their interpretation of what it is, I guess she does have lawful custody ‘from and after April 1, 1986 in accordance with this opinion.’

“I understand what they have told me to do.   Again I will find that Miss Parsons has intentionally frustrated the father's access to the child, and it appears to continue through this date.  [¶] Although it appears that the father as of this date has made a statement made by Mr. Noon [Charles's counsel], although no evidence, I guess it was by Miss Yavenditti [Sherri's counsel], that is somewhat akin to I am willing to throw in the towel as a result of what two states and what this law does to people especially with child custody problems that they have.

“I will order child support in the sum of $310 per month which I understand to be just above the Agnos minimum.   I will find that that is below the guidelines in the State of California.   It's below what he can afford.

“However, I will make a finding that the amount—the difference between what he can afford and the $310 that I've ordered is it's necessary for him to have those funds to continue fighting to try and find—to get access with that child.  [¶] And that as equally important as the physical needs of this child are the emotional needs that she has with both parents.   And that the only way she can obtain em[o]tional—an em[o]tional relationship with her father is by this father continuing to use the legal process.

“I will award—I will find arrears in the sum of $8,370.   That is for the 27 months from April 1, 1986 up through and including today.

“I will award fees to Mrs. Yavenditti in the sum of $750.   That is requested.

“Pursuant to [Civil Code section] 4370.5B2, I will award $10,000 in fees from Mrs. Parsons to Mr. Parsons in that she has totally, completely and absolutely frustrated the jurisdiction process here in the State of California.   That it's opposite to what 4370.5B2 suggests that we do, and that is to make every effort to try and settle cases.   And anyway that will be the order.

“Ms. Yavenditti:  Is there a payment schedule on the arrears and the respective fees?

“The Court:  Fees are due forthwith.   The arrearages are offset in the fact she owes him 1,000—she owes him $1,630.   Fees are to be paid directly to Miss Yavenditti.”

DISCUSSION

I

 Sherri contends the trial court erred in awarding only $310 a month child support where the father earns $150,000 a year and the mother receives only $12,000 a year in disability payments.   We agree.

It is the law of the case that notwithstanding the existence of a September 1980 superior court order awarding custody to Charles, as of April 1, 1986, and thereafter the California courts recognize the lawful custody of Mollie is with Sherri.   The 1986 orders of the superior court granting visitation to Charles provide the basis for the March 24, 1988, opinion of this court stating “Sherri has had lawful custody of the minor child of the parties from and after April 1, 1986․”   The opinion makes this point about Sherri's lawful custody abundantly clear.

“The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.”  (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 737, p. 705.)   It was necessary to the decision in D005649 to rule Sherri had lawful custody in order to apply section 4382 ⁶ and remand for the purpose of reconsidering Sherri's request for a “reasonable child support order.”  (D005649.)

The above-quoted statement of the trial court discloses without question that the court realized it was not ordering a reasonable child support as required by the order of this court and section 4382.   The court acknowledged its order was “just above the Agnos minimum ․ below the guidelines in the State of California ․ below what he can afford.”

The order was an abuse of discretion and must be reversed so that the trial court may consider child support in the proper exercise of its discretion, as we describe, infra, and in the context of the appropriate application of the statutory and decisional law on the subject.⁷  (§ 4382;  Code Civ. Proc., § 1694.⁸ )

We note that Charles relies on Moffat v. Moffat, supra, 27 Cal.3d 645, 652, 165 Cal.Rptr. 877, 612 P.2d 967, for the proposition that among the remedies available to a frustrated parent is modification of child support.   Neither Moffat nor any other case is to be read as authority for that proposition.   Moffat states that a noncustodial parent owing child support whose visitation rights have been frustrated or destroyed may request the trial court to exercise its “authority to award a change of custody or to otherwise modify the custody and child support․   The deliberate sabotage of visitation rights not only furnishes ground for modification, it is a significant factor bearing on the fitness of the custodial parent.”  (Id. at p. 652, 165 Cal.Rptr. 877, 612 P.2d 967, italics added.)

The thrust of the quoted statement is upon a change of custody.   Since a change of custody is ordinarily to be accompanied by a change of support due to its impact on the factors of need and ability, Moffat speaks in the conjunctive about modifying “custody and support.”   This statement is not correctly to be read as endorsing a change in support alone when the frustration or destruction of visitation is shown.   The chief holding of Moffat, that even though the custodial parent deprived the father of visitation that parent was not estopped from seeking enforcement of the child support order, does not permit such an interpretation.  (See also In re Marriage of Ciganovich (1976) 61 Cal.App.3d 289, 294, 132 Cal.Rptr. 261.)

 However, on remand, the trial court will be clothed with broad discretion in determining the appropriate level of child support to be ordered in this case.   While frustration of visitation privileges cannot, under our statutory authority, undermine the “determination or enforcement of a duty of support,” (Code of Civ.Proc., § 1694) nor can it affect the “existence or enforcement of a duty of support” (§ 4382), we submit it can well enter into the determination of the amount of support to be awarded.   An example of this is well illustrated by this case.   We have a custodial parent whose income under any circumstance is low.   If the child's entitlement to support be measured by her mother's living standards it also will be modest.   This child's father, however, earns something like $150,000 per year.   Other things being equal, a child is entitled to support which is consonant with the resources and life styles of both parents.  (See §§ 4720, subd. (e) and 4724, subd. (a);  White v. Marciano (1987) 190 Cal.App.3d 1026, 1031, 1032, 235 Cal.Rptr. 779).

 Where, however, the obstinacy of a custodial parent deprives the child of the society (even for brief visits) of its wealthy parent, we submit the child has been relegated to the life-style of the poor parent.   It is unreasonable for a court to countenance the contemptuous behavior of a parent, nevertheless leaving the custody of the child with that parent, and yet require the deprived parent to continue support of his or her stranger child in the style which would be appropriate if the child lived in his or her own home.

 We therefore hold that it will be appropriate when this case is reconsidered by the trial court for it to include in its consideration the factor of the custodial parent's deprivation of this child's association with the child's father.   That conduct, which due to the circumstances of the case this court is forced effectively to condone, cannot be used to deprive the child of basic support.   It can and should be taken into consideration, however, in reaching a conclusion as to the level of support required by the child.

II

Sherri contends the trial court erred in awarding Charles $10,000 in attorney's fees and in depriving Mollie of support by setting off the fees against the child support arrearages.

 It is a fundamental general rule that an award of attorney's fees must be based on considerations of the payee's need and the payor's ability to pay.  (§ 4370, subds. (a) and (c);  In re Marriage of Hatch (1985) 169 Cal.App.3d 1213, 1219, 215 Cal.Rptr. 789;  In re Marriage of Stephenson (1984) 162 Cal.App.3d 1057, 1090–1091, 209 Cal.Rptr. 383.)   In Stephenson, the court points out that dilatory tactics on the part of the party ordered to pay the attorney's fees are a consideration going to the amount of the fees award but do not “justify their award in the first instance.   Such an award must be based solely on the respective abilities of the parties to pay.”  (Stephenson, supra, 162 Cal.App.3d at p. 1091, 209 Cal.Rptr. 383.)   Moreover, a court has no inherent power to award attorney's fees to punish misconduct;  it must sanction under the authority of provisions such as Code of Civil Procedure section 128.5.  (Stephenson, supra, 162 Cal.App.3d at pp. 1091–1092, 209 Cal.Rptr. 383.)

 The $10,000 attorney's fees award to Charles here cannot stand on the basis of any appropriate showing of Charles's need and Sherri's ability.

The trial court, however, cited section 4370.5 which reads:

“(a) The court may make an award under this chapter where the making of the award, and the amount of the award, is just and reasonable under the circumstances of the respective parties.

“(b) In determining what is just and reasonable under the circumstances, the court shall take into consideration both of the following:

“(1) The need for the award to enable each party, to the extent practical, to have sufficient financial resources to adequately present his or her case, taking into consideration to the extent relevant the circumstances of the respective parties described in subdivision (a) of Section 4801.

“(2) The extent to which the conduct of each party and the attorney furthers or frustrates the policy of the law to promote settlement of litigation, and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.

“(c) The court may order payment of the award from any type of property, whether community or separate, principal or income.”  (Italics added.)  9

The California Law Revision Commission report concerning section 4370.5 includes the statement, “Subdivision (b) lists two important factors the court should consider in making such an award.”  (18 Cal.Law Revision Comm.Rep. (1985) p. 351.)

In light of the mandatory language in subdivision (b), “the court shall take into consideration both of the following,” (italics added) it seems apparent under the plain meaning of these words that in order to recover attorney's fees under section 4370.5 a party must make a showing that both factors in subdivision (b)(1) and subdivision (b)(2) are present.  (See In re Marriage of Melone (1987) 193 Cal.App.3d 757, 765, fn. 6, 238 Cal.Rptr. 510, stating in part, “If the Legislature desires to make attorney's fees more readily available in family law cases in which one party has been put to the expense of prosecuting or defending unnecessary litigation—as clearly appears to have been its primary purpose when it enacted section 4370.5—it should repeal subdivision (b)(1) of that statute.”) ¹⁰  Here, at most, only the second factor is present.   There is no showing of Charles's need for the award.   Thus, section 4370.5 does not furnish authority for the attorney's fees award.  (Cf. In re Marriage of Norton (1988) 206 Cal.App.3d 53, 57–60, 253 Cal.Rptr. 354, where the court upheld an award under section 4370.5 in a case involving parties of roughly equal means without discussing the “need” factor of subdivision (b)(1), but nevertheless making note of the trial court's finding the party required to pay “possessed adequate means to bear the costs imposed on her through this award.”  (Id. at p. 60, 253 Cal.Rptr. 354.))

 Finally, the very nature of child support, an obligation due to the child and paid to the parent only as a conduit for the disbursement of that support, does not permit a set-off against accrued child support for amounts owed for other things such as attorney's fees.  (Williams v. Williams (1970) 8 Cal.App.3d 636, 640, 87 Cal.Rptr. 754;  see also In re Marriage of Ayo (1987) 190 Cal.App.3d 442, 451, 235 Cal.Rptr. 458.)   The set-off ordered by the trial court must be reversed.

DISPOSITION

Order reversed.

FOOTNOTES

FN1. All statutory references are to the Civil Code unless otherwise specified..  FN1. All statutory references are to the Civil Code unless otherwise specified.

2.   Mollie's mother legally changed her last name to Parsons from Lofland.

3.   A schedule, which is made part of an attachment to Charles's responsive declaration to the OSC in the present proceeding, shows Charles has expended over $35,000 in connection with this case.   Charles requested an order requiring Sherri to pay those expenses.

4.   The appeal was treated as a petition for a writ of mandate.

5.   As in the last appeal, we have taken judicial notice of the contents of the record on the previous two appeals, D005649 and D004516.

6.   Section 4382 provides in relevant part:  “The existence ․ of a duty of support owed by a noncustodial parent for the support of a minor child shall not be affected by a failure or refusal by the custodial parent to implement any rights as to custody or visitation granted by a court to the noncustodial parent.”  (Italics added.)

7.   In reaching its decision the trial court considered the now unpublished case of In re Marriage of Boudreaux (1987) 201 Cal.App.3d 447, 247 Cal.Rptr. 234, which supported the trial court's order fixing the amount of child support.   Any further reliance on that case is improper.  (California Rules of Court, rule 977.)

8.   Code of Civil Procedure section 1694 provides in part:  “The determination or enforcement of a duty of support owed to one obligee is unaffected by any interference by another obligee with rights of custody or visitation granted by a court.”  (See Moffat v. Moffat (1980) 27 Cal.3d 645, 651–652, 165 Cal.Rptr. 877, 612 P.2d 967.)

9.   Effective January 1, 1990, the following three sentences were added to subdivision (b)(2) of section 4370.5:  “An award of attorney fees and costs pursuant to this paragraph is in the nature of a sanction.   In making an award pursuant to this paragraph, the court shall take into consideration all evidence concerning the parties' incomes, assets, and abilities.   The court shall not impose a sanction pursuant to this paragraph that imposes an unreasonable financial burden upon the party against whom the sanction is imposed.”  (Stats.1989, ch. 1105, § 3.)

10.   In re Marriage of Joseph (1990) 217 Cal.App.3d 1277, 1290, 266 Cal.Rptr. 548, has held that under section 4370.5, subdivision (b), “the absence of need cannot automatically defeat a request for fees and costs under this provision.   Thus, while the trial court must consider both need and the parties' litigation conduct, these factors may be weighted and weighed so that an award may be made even where no need has been demonstrated.”The court permitted a former wife who had not shown her need for attorney's fees and who had admitted she had sufficient resources to pay her attorney's fees to seek an award under section 4370.5.The facts in Joseph eliminate the need to consider the burdened party's ability to pay.   Here, Sherri's income is so limited as to make her ability to pay fees to Charles paramount.

TODD, Acting Presiding Justice.

FROEHLICH and NARES, JJ., concur.