Marriage of Siller, In re

Page 757

231 Cal.Rptr. 757

187 Cal.App.3d 36

In re the MARRIAGE OF Gail S. and Charles W. SILLER Gail S. SILLER, Respondent, v. Charles W. SILLER, Siller Bros., Inc., et al., Appellants.

Civ. 24317.

Court of Appeal, Third District, California.

Nov. 20, 1986.

Certified for Partial Publication ^*

Review Denied Feb. 5, 1987.

Isenberg & Moulds, John F. Moulds, Gessford & Abbott, Inc., David W. Abbott, and C. Alexandre Barbera, Sacramento, for appellants.

Brobeck, Phleger & Harrison, William E. Trautman, William F. Sullivan, and Carol Reese MacLeod, San Francisco, for respondent.

SIMS, Associate Justice.

Civil Code section 4370 ¹ allows a trial court in a marital dissolution proceeding to award pendente lite attorneys fees to a spouse, payable by unrelated third parties who have been brought into the dissolution action by joinder. (Statutory references are to the Civil Code unless otherwise indicated.) In this case, we hold the statute was constitutionally applied when unrelated third parties were ordered to pay a wife pendente lite attorneys fees to compensate her attorneys for their successful opposition to various motions and writ petitions filed by third parties.

Appellants Siller Brothers, Inc. (hereafter corporation) and Siller Brothers, a Partnership (hereafter partnership; sometimes collectively third parties) appeal from an order directing them to pay $100,000 attorneys' fees pendente lite to wife's counsel. They contend: (1) section 4370 must be construed to permit fee awards from nonspouse parties only where the moving party has prevailed in the litigation; (2) section 4370's legislative history suggests nonspouse parties are subject to fee awards only if they "stubbornly resist" the family law court's jurisdiction; (3) the trial court lacked subject matter jurisdiction to award the attorneys fees; (4) as applied in this case, section 4370 unfairly authorized the taking of third parties' property in violation of constitutional guarantees of substantive and procedural due process of law; and (5) the trial court's award constitutes an abuse of discretion.

In this published portion of our opinion we reject third parties' contentions; in an unpublished portion we reject husband's contention the trial court erroneously increased his pendente lite spousal support obligation. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND OF THE ATTORNEY FEE AWARD

After 21 years of marriage, husband and wife filed this action to dissolve their marriage.

Siller Brothers, Inc. is a California corporation formed after the marriage. Husband owns 40% of the shares of the corporation's stock. One of husband's brothers owns 40% of the shares and another brother owns 20% of the shares. Throughout the marriage husband contributed his services primarily to the business of the corporation.

The partnership was dissolved before the marriage and reformed after the marriage. Husband has a 50% interest in the partnership. One of husband's brothers owns the other 50% interest. The partnership is primarily in the farming business.

Both business entities experienced substantial growth during the marriage. In 1982, the corporation owned more than $45 million in assets; the partnership held assets valued at more than $14 million.

During the marriage 23 parcels of real property in this state were acquired with record title taken in the names of husband, wife, one of husband's brothers, and his wife. In 5 of the deeds, wife's interest is expressly referred to "as community property"; in the remaining 18 deeds she is identified as the wife of grantee Charles Siller (husband).

Wife petitioned for dissolution of marriage in 1981. At some point in the first year of the proceeding wife took the position she was the owner of a one-quarter interest in the 23 parcels of real property.

In late December, 1982, the partnership filed an action seeking imposition of a purchase money resulting trust in its favor upon the 23 parcels. (See Martin v. Kehl (1983) 145 Cal.App.3d 228, 238-239, 193 Cal.Rptr. 312.) The partnership alleged it paid the purchase price of those properties solely from its own funds. Wife responded to the partnership's resulting trust action by obtaining the joinder of the partnership and the corporation as parties in the dissolution proceeding. (§ 4363; Cal. Rules of Court, rules 1250-1256.) The various actions ended up in Sacramento County Superior Court pursuant to coordination proceedings. (Code Civ.Proc., § 404, et seq.; Cal. Rules of Court, rule 1501, et seq.)

In her first amended complaint for joinder wife alleged she owned a community property interest in real and personal properties claimed by the partnership, including the 23 parcels where title was taken in her name. Wife also alleged the corporation was a sham and shell and the alter ego of husband and others. She alleged husband invested community property funds in the corporation; using those funds the corporation acquired real and personal properties. Wife alleged the corporation's use of community funds, funds borrowed for which husband was guarantor, and husband's personal efforts, gave her a beneficial interest in the properties acquired by the corporation.

Before trial wife moved for an award of attorneys' fees from third parties. Wife's motion was supported by her counsel's declaration stating that, both before and after third parties were joined as parties to the dissolution action, wife had been forced to resist numerous unsuccessful motions by third parties to block discovery. These included motions that the depositions of the custodians of records of the partnership and the corporation not be taken; a motion to limit or modify a subpoena duces tecum to third parties' bank; motions to limit the scope of examination and production of documents; and a motion for protective and quashal orders to custodians of records. Wife had also successfully resisted third parties' motion for judgment on the pleadings and two writ petitions to this court, one challenging the coordination order and the other attacking the order overruling their demurrer to wife's complaint for joinder.

The trial court found wife had incurred $117,400 in attorneys' fees responding to third parties' unsuccessful procedural maneuvers. The trial court awarded wife $100,000 in attorneys' fees for which partnership and corporation were to be jointly and severally liable. It also awarded wife $100,000 in fees from husband.

Following a trial, the trial court found that corporation was the alter ego of husband, his brothers, and the partnership, "but the doctrine of alter ego will not be necessary to protect petitioner's community interest in [corporation] and/or [partnership]." The court concluded wife owned no community property interest in the 23 parcels of real property; rather, she held title to the parcels in a resulting trust in favor of the partnership. Judgment was entered in accordance with these views. With respect to third parties, only the $100,000 pendente lite attorney fee award is at issue in this proceeding. ²

I DISCUSSION OF THE ATTORNEY FEE AWARD

Pendente lite attorneys fees were properly awarded under section 4370

Third parties argue the trial court erred in ordering them to pay wife $100,000 in pendente lite attorneys' fees pursuant to section 4370. For reasons that follow, we cannot agree.

A

Section 4370 authorizes an award of attorneys fees before judgment

Third parties first contend this court should construe section 4370 to permit attorney fee awards against nonspouse third parties only when the party requesting fees has prevailed in the outcome of the litigation. We cannot do so.

"In construing a statute 'we begin with the fundamental rule that a court "should ascertain the intent of the Legislature so as to effectuate the purpose of the law." ' [Citations.] 'An equally basic rule of statutory construction is, however, that courts are bound to give effect to statutes according to the usual, ordinary import of the language employed in framing them.' [Citations.] Although a court may properly rely on extrinsic aids, it should first turn to the words of the statute to determine the intent of the Legislature. [Citations.] 'If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.' [Citations.]" (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 698, 170 Cal.Rptr. 817, 621 P.2d 856; cf. Regents of University of California v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 607, 224 Cal.Rptr. 631, 715 P.2d 590.)

Section 4370 unequivocally declares who is subject to a fee award: it provides "the court may order any party, except a governmental entity, to pay such amount as may be reasonably necessary...." (Emphasis added.) This language is not reasonably susceptible to a distinction between spouses, on the one hand, and nonspouse parties, on the other. "It is plain from the face of the statute that ... fees and costs can be assessed against any party, regardless of the payor's relationship to the payee." (In re Marriage of Newport (1984) 154 Cal.App.3d 915, 918, 201 Cal.Rptr. 647, original emphasis.)

Section 4370 also says an award may be made "During the pendency of any proceeding under this part, ..." "During the pendency" means while the proceeding is ongoing and necessarily includes the period before any party prevails in the litigation. Section 4370 further provides the award may be modified "from time to time and before entry of judgment." Thus the statute's terms unmistakably authorize fee awards long before any party finally prevails in the litigation. ³

Moreover, a statute must be construed in context, considering its nature and obvious purpose. (People v. Municipal Court (Gonzales) (1982) 137 Cal.App.3d 114, 117 186 Cal.Rptr. 716; Sanchez v. Alexis (1982) ...