In re Marriage of Kraut and Boden 12/22/03 CA2/4

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B162065

Case Date: 03/04/2004

Preview:Filed 12/22/03 Marriage of Kraut and Boden CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR In re the Marriage of LESLEY KRAUT and ROBERT BODEN. LESLEY KRAUT, Appellant, v. ROBERT BODEN, Respondent; NATE G. KRAUT, Objector and Appellant. B162065 & B164780 (Los Angeles County Super. Ct. No. BD152863)

APPEALS from orders of the Superior Court of Los Angeles County, John W. Ouderkirk, Judge. Dismissed in part and affirmed. Esner & Chang and Stuart B. Esner for Appellant and Objector and Appellant. Kolodny & Anteau, William J. Glucksman, Jody M. Leibman, and James L. Keane for Respondent.

INTRODUCTION Lesley Kraut appeals from two orders involving issues of child custody, child support, attorney fees and costs, and the imposition of discovery sanctions,1 which followed a 1996 judgment of dissolution of her marriage from Robert Boden. As to one order, we find the notice of appeal was untimely and therefore dismiss the appeal to the extent it purports to challenge that order. As to the second order, we find no merit to the various contentions of error and therefore affirm the order. FACTUAL AND PROCEDURAL BACKGROUND Boden and Kraut were divorced on February 14, 1996. They have one child, Michelle, born in May 1991. Prior to the events at issue in the present appeal, Kraut had been twice tried on charges of attempting to murder Boden; both trials ended in a hung jury. Kraut claimed she attacked Boden when he entered her home and she believed him to be an intruder. In addition, Kraut had accused Boden and his wife, Marla, of molesting Michelle. Apparently after Michelle told her teacher she had been molested, the teacher reported the matter to the Department of Children and Family Services (DCFS), which investigated and found the allegations were unsubstantiated. Boden filed an order to show cause on November 17, 2000, by which he sought to modify the parties' custody and visitation arrangements (so that he had sole physical custody of Michelle), to obtain an Evidence Code section 730 psychiatric evaluation, and an order that Michelle see a therapist. He also sought
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As to the imposition of sanctions, Nate Kraut, Kraut's brother and prior attorney, is a party to this appeal as objector and appellant.

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sanctions against Kraut for allegedly making false accusations of child molestation, and an award of attorney fees and costs. On January 9, 2001, Kraut filed an application for pendente lite attorney fees. She requested $78,000 in fees in order for her to be prepared to defend against Boden's OSC, scheduled for hearing on January 22, 2001. Part of the $78,000 request was "to bring her current on her past legal fees just to bring her up to par." Her counsel, Nate Kraut, estimated that she would need $30,000 to retain a family law practitioner to defend her in the upcoming OSC. On January 16, 2001, a hearing was held on the application for pendente lite fees, as well as on Boden's motion to continue the hearing on his OSC. After some discussion of the financial condition and dealings of the parties, the court stated: "I am going to deny the request without prejudice and what I am going to do is continue the OSC hearing from the 22nd, but I will set a hearing on the subject of attorneys fees when each side has more opportunity to conduct discovery regarding these money issues because I can't take any of this at face value." The court ordered both parties to produce tax returns and all other evidence of their income for the past three years. Counsel for Kraut asked, "You have continued the matter?" The court replied, "Regarding discovery regarding finances." The court asked each party to specify if there were any specific requests for financial information they wanted. As part of that discussion, Boden's counsel asked for "an accounting as to the attorneys fees that he is alleging." The trial court said, "All right," then gave Kraut's counsel an opportunity to speak. The court appointed counsel for the minor child, and reserved jurisdiction to determine who would pay for minor's counsel. The court also set February 1, 2001, as the deadline for exchange of documents.

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Kraut's counsel then stated, "I take it because you are continuing this motion that I don't have to file new paperwork regarding it; is that correct? We are going based on the moving papers that you currently have other than the financial information?" The court said, "There is going to be new information, perhaps, coming in. Either side may wish to supplement what they have submitted to the court." Kraut's counsel replied, "Right, but I don't have to set a whole new motion to start the ball rolling?" The court said, "No." The notice of ruling for the January 16, 2001 hearing stated that the court ordered, among other things, that Kraut's "motion for pendente lite attorney's fees was denied without prejudice to being granted at the hearing to be held on February 28, 2001"; and that "the date for a hearing on [Boden's] OSC to terminate [Kraut's] parental and custodial rights will be set at the February 28, 2001 hearing on [Kraut's] motion for an award of pendente lite attorney's fees." On January 22, 2001, Boden served notice for Kraut's deposition to be held on February 6, 2001, a date preceding the hearing on the application for pendente lite fees. Kraut objected to the notice as being defective for lack of service on Susan Weiss (appointed as child's counsel), and as preceding the hearing scheduled for February 28, 2001. Kraut filed a motion seeking a protective order to prohibit Boden from taking her deposition prior to decision on the motion for an award of pendente lite attorney fees. Kraut also sought an award of sanctions pursuant to Code of Civil Procedure section 128.5. This motion was also calendared for February 28, 2001. On February 14, 2001, Boden brought an ex parte application to shorten time on a motion to compel Kraut's deposition, and requesting sanctions for Kraut's failure to attend her scheduled deposition. At the hearing, the trial court stated: "What I am inclined to do is to continue the February 28th hearing, and I am inclined to do this, and I will hear from you, and allow any of these motions to 4

be brought within the normal time for bringing a motion as opposed to one on shortened time." After further discussion, the court ordered that no depositions would be taken prior to the February 28th hearing. The court placed off calendar the hearing on Kraut's request for pendente lite fees and all other financial issues, including child support; those issues were to be decided at a later date. The court noted that at the hearing on Kraut's motion for a protective order (still scheduled for February 28, 2001) it would decide what depositions, if any, would be ordered. Boden asked that his ex parte motion to compel Kraut's deposition be considered the opposition to the motion for a protective order, and the court granted the request. "Your Honor, my feeling is that between now and the 28th, if, in fact, the court is going to hear . . . his request for the protective order on the 28th, then our motion that we filed today, we would ask that that be our response to his notice for protective order. I believe it's one in the same, quite honestly, Your Honor. [

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