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Case of the Month Archive

March 2022

Fourth District upheld sanctions against attorney for disclosure of child custody evaluation. . .

 

In affirmance, the Fourth District held that trial court did not err in imposing sanctions against attorney for attorney's disclosure of a child custody evaluation in a dissolution proceeding in violation of Fam C §3111(d) [trial court may impose sanctions against party making an unwarranted disclosure of a written confidential report].

 

Shenefield v. Shenefield

(February 25, 2022)

Court of Appeal 4 Civil D078643 (Div 1), 75 CalApp.5th 619, __ Cal.Rptr.3d __, 2022 FA 2023, per Huffman, J. San Diego County, Miller, J., order affirmed. For Appellant (Karolyn Kovtun): pro per. For Respondent (Jennifer Shenefield): John Morris. CFLP §P.56.

 

On June 13, 2017, Jennifer Shenefield obtained a five-year DVRO against her husband, Mark Shenefield, prohibiting him from contacting her or their child, except for court-ordered visitation. The order also authorized Jennifer to record any violations of the DVRO. On September 13, 2017, Mark pled guilty to misdemeanor battery on a spouse. The trial court in the criminal matter issued a criminal protective order that also authorized Jennifer to record any violations of the protective order. Mark was represented by Karolyn Kovtun in the criminal matter. Later that month, Jennifer filed a dissolution petition against Mark. Mark again retained Karolyn for the dissolution proceeding.

 

Nobody likes meetings. . .
On September 28, 2017, Jennifer attended a meeting at Karolyn's office, with Mark and Karolyn. At this meeting, Mark screamed profanities at Jennifer and threatened to take full custody of the parties' child. Karolyn, meanwhile, accused Jennifer of being a bad parent and a liar and told her that she would hit her if she were in Mark's place. Jennifer recorded this meeting. Mark later pled guilty for violating a court order from his conduct at this meeting.

On August 21, 2018, Mark filed a request for order (RFO) seeking joint legal and physical custody of the parties' child. In Mark's attached declaration, Mark alleged that Jennifer made a false allegation against her previous husband, noting that "'Jennifer was ordered to undergo a E[vidence] C[ode] §730 evaluation by Dr. Stephen Sparta who suggested that she would do it again if she felt the ends justified the means.'" Mark quoted from the child custody evaluation for the length of one page in his declaration. Mark also referenced report details in other parts of his declaration. Jennifer opposed Mark's request, and in her response, requested sanctions against Mark and Karolyn for violating Fam C §3111(d) [trial court may impose sanctions against party making an unwarranted disclosure of a written confidential report] and Fam C §3025.5 [report containing custody recommendation must be kept in confidential portion of court file and may be disclosed only as specified].

 

Sanctions are identified as an issue for litigation. . .
The parties appeared in court on February 25, 2019, and the trial court told the parties it would determine custody, visitation, and sanctions at trial. At a trial readiness conference on May 30, 2019, the trial court again identified the issues for trial, which again included Jennifer's request for sanctions against Mark and Karolyn. Neither Mark nor Karolyn objected to the litigation of sanctions.

In her trial brief, Jennifer argued, among other things, that sanctions should be ordered against Mark and Karolyn. Jennifer attached to her trial brief a transcript of the meeting that occurred between the parties on September 28, 2017. Mark, meanwhile, did not file a trial brief. After the trial, the trial court found that Mark disclosed excerpts of the child custody evaluation, that Jennifer had asked for sanctions in her response to Mark's declaration, the issue of sanctions was identified at the trial readiness conference, and Karolyn was personally served Jennifer's trial brief that identified sanctions as an issue to litigate. The trial court further found that as a seasoned attorney, Karolyn should have been aware of Fam C §3111(d) sanctions and that Karolyn was reckless in filing documentation that disclosed a confidential custody evaluation. The trial court imposed $10,000 in sanctions against Mark and $15,000 in sanctions against Karolyn. The sanctions against Karolyn were payable at $300 per month, with interest accruing at an annual rate of 10%. On July 27, 2020, Karolyn filed a motion to vacate the portion of the order that imposed sanctions on her. The trial court affirmed the order imposing sanctions. Karolyn appealed, but the Fourth District affirmed.

Fam C §3111(d) provides [i]f the court determines that an unwarranted disclosure of a written confidential report has been made, the court may impose a monetary sanction against the disclosing party." On appeal, Karolyn argued that the word "party" in Fam C §3111(d) excludes attorneys. The justices disagreed for several reasons. First, the justices reasoned that the modifying word "disclosing" in "disclosing party" indicates that the statute applies to "any person who discloses confidential information when doing so is unwarranted." Second, the legislative history of Fam C §3111(d) provided that the sanction provision of subdivision (d) was enacted to "'ensure that sensitive information obtained for the court remains confidential.'" Third, the panel found persuasive the dicta from the Second District in In re Marriage of Anka & Yeager (2019) 31 Cal.App.5th 1115, 242 Cal.Rptr.3d 884, in which the court explained that an attorney's willful disclosure of confidential information protected by Fam C §3111(d) harmed "'the entire process of child custody evaluation.'" And fourth, the panel noted that if the statute did not cover disclosure of confidential information by attorneys, then parties to a dispute could simply share confidential information with their attorneys for the purpose of disclosing that information without facing any consequences.

The justices also rejected Karolyn's argument that she did not receive proper notice because Jennifer did not file and personally serve a separate RFO on the issue of sanctions as required by Cal. Rules of Court, rule 5.14. The justices first observed that Rule 5.14 applies only to violations of the Cal. Rules of Court and, here, the costs award was statutorily grounded. The panel also noted that that there is no requirement that a party seeking sanctions file a separate RFO when the issue of sanctions can be "properly handled in conjunction with the original request for order." The justices further found that Karolyn had notice and an opportunity to be heard on the issue of sanctions, since the issue of sanctions was identified in Jennifer's trial brief as well as at the trial readiness conference. Thus, the due process requirements were met.

Lastly, the panel rejected Karolyn's argument that the transcript of the September 28, 2017, meeting at Karolyn's office was improperly admitted into evidence and considered. PC §632(a) prohibits evidence obtained through the recording of a confidential communication in violation of the statute from use in any judicial proceeding. The justices noted, however, that "confidential communication" as defined in the statute excludes "a communication made in any…circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded." The justices reasoned that the September 28, 2017, meeting was not a confidential communication since Karolyn was aware that Jennifer was authorized through the DVRO and criminal protective order to record violations of the protective orders. Accordingly, the Fourth District affirmed the trial court's order imposing sanctions against Karolyn.

 

 

COMMENT:

  

There was more fallout as a result of the September 28, 2017, meeting. After the meeting, Jennifer filed a state bar complaint against Karolyn, but after an investigation, the State Bar of California concluded the matter did not warrant further action. Meanwhile, Karolyn filed a small claims complaint against Jennifer seeking $5,000 in damages for invasion of privacy. Jennifer cross-complained and, as of the date of this write-up, the matter appears to be pending. For more information about this matter, see the unpublished opinion of Shenefield v. Kovtun, 2022 WL 261671.

 

Library References
10 Witkin, Summary of Cal. Law (11th ed. 2021) Parent and Child, §285
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) ¶7:240 et seq.

 

 

 
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