In a matter of first impression, the First District held that when allocating costs of an expert appointed under Ev C §730, the court must inquire and take into consideration a party's ability to pay such costs, where the expert is acting as a child custody evaluator in a contested proceeding involving custody or visitation rights.
Peterson v. Thompson
(March 29, 2023)
California Court of Appeal 1 Civ A157874 (Div. 2) 89 Cal.App.5th 988, 306 Cal.Rptr.3d 516, 2023 FA 2080, per Stewart (Miller, J., and Markman, J., concurring). Placer County: Paulsen, J., vacated and remanded. CFLP §G.84.5.
In April 2013, a child welfare referral was made concerning the conduct of Anna Peterson toward her eight-year-old daughter. In September 2013, Dr. Sidney Nelson, a court-ordered child custody evaluator appointed under Ev C §730, recommended Kevin Thompson, the child's father, have sole legal and physical custody and that Anna have up to 6 hours of weekly supervised visitation, as well as attend 40 sessions of individual therapy. The trial court adopted Dr. Nelson's recommendation.
For his service, Dr. Nelson charged $16,747. Kevin advanced the cost of Dr. Nelson's services, although the trial court later ordered Anna to reimburse him approximately one-half of this fee, to be paid at a rate of $100 per month. In addition to her portion of Dr. Nelson's fee, Anna alone was ordered to pay for reunification therapy. Meanwhile, Anna was also paying child support and the cost of supervised visitation. In 2015, Anna filed for Chapter 13 bankruptcy and, under the Chapter 13 plan, she was paying $650 per month.
In October 2016, Anna filed a request for joint legal and physical custody, stating that the child welfare referral involving her had been "'overturned.'" The trial court ordered the parties to obtain an updated report from Dr. Nelson. Specifically, the trial court wanted Dr. Nelson to review the court documents filed since the initial evaluation, conduct another round of interviews, and make an updated recommendation. Anna objected that she could not afford to pay additional fees for Dr. Nelson's services. The trial court directed Anna's counsel to contact Dr. Nelson for a quote given the limited scope of review that would be needed. Kevin, meanwhile, stated that he believed the updated report would cost less than $10,000. The trial court explained that "'if [Dr. Nelson] says $10,000, then we may have to come back to court and talk about how we're going to proceed, but there is not much I can do at that point if that's what Dr. Nelson's recommending and charging, I don't know what to do.'"
At a hearing on October 18, 2016, Anna's counsel informed the trial court that Dr. Nelson declined to offer a quote for the total cost of an updated evaluation but stated that he required a $2,000 retainer from each parent to begin. Kevin offered to pay both portions of the retainer but requested Anna split the cost of anything above the retainer amount. The trial court instead ordered Kevin to "'advance'" the retainer subject to reallocation of that payment and further ordered that anything over the retainer amount would be split equally.
Later, when Anna attempted to begin work with Dr. Nelson, Dr. Nelson's office informed her that she would need to make a payment of $1,000, which would be in addition to the $4,000 retainer that Kevin had agreed to pay. Anna was also informed that Dr. Nelson's fee would greatly exceed $4,000. In a conference call with both parents, Dr. Nelson stated that he would need his fee to be paid in full before beginning his evaluation. Kevin offered to advance this fee subject to reallocation, but Anna declined due to her inability to pay her portion of Dr. Nelson's services.
On December 1, 2016, Anna filed a request for an order vacating or amending the order requiring Dr. Nelson's updated evaluation. She argued that she could not afford to pay Dr. Nelson $1,000 or one-half of anything above the retainer. In support of her request, Anna filed a declaration informing the court of her financial situation, including her bankruptcy, living expenses, and court-related expenses. Anna further stated "'[a]s it stands, I often have to scrimp and save to afford the supervised visits and there have been times where I simply do not have the funds to pay for the supervised visits.'" In turn, Kevin filed a request for an order that Anna participate in the updated evaluation but also offered to pay all of Dr. Nelson's fees subject to later reallocation. The trial court granted Kevin's request.
The updated evaluation. . .
In May 2017, Dr. Nelson completed his updated evaluation, for which he charged $13,875. Dr. Nelson recommended Kevin continue to have sole legal and physical custody of their daughter, with supervised visitation for Anna. On September 18, 2018, the trial court adopted Dr. Nelson's recommendation and directed Anna to continue with four more months of therapy, after which the trial court would decide whether to order reunification therapy between her and daughter.
On November 14, 2018, Kevin filed a request for an order requiring Anna to reimburse him for a portion of Dr. Nelson's fee for the updated evaluation. In his request, Kevin did not seek reimbursement for the $4,000 retainer, only that Anna reimburse him for one-half of the remaining balance of $9,875. Anna opposed Kevin's request, again arguing that she could not afford to pay Dr. Nelson's fees. Anna also argued that she had overpaid Kevin in daycare expenses in the amount of $6,016. Anna asked the trial court to use her overpayment of daycare expenses to offset Dr. Nelson's fee and to deem her portion of his fee paid in full.
On May 28, 2019, the trial court (Placer County's Paulsen) ordered Anna to reimburse Kevin in the amount of $3,468.75 (or 25% of the $13,875 that Kevin paid to Dr. Nelson), to be paid at a rate of $290 per month. The trial court based its allocation on a child support calculation of Anna's "'net spendable income'" relative to Kevin's. Anna appealed, and the First District vacated the order and remanded the matter for further proceedings.
The justices agreed that the matter should be resolved on statutory grounds rather than constitutional ones. . .
On appeal, Anna argued that the order to reimburse Kevin violated her constitutional rights to access to the courts, equal access to justice, and due process as well as violated statutory authority insofar as the trial court failed to consider her inability to pay when allocating the costs for Dr. Nelson's services. The panel agreed with Anna that the matter should be resolved on statutory grounds if possible. On this point, Anna failed to identify any statutory authority that expressly imposes a requirement that courts consider the parties' ability to pay the costs of an expert appointed pursuant to Ev C §730. Instead, she argued that such a requirement should be read into the statute, by way of harmonizing Ev C §730 and various family law statutes that do impose such a requirement, where the expert in question has been appointed as a child custody evaluator to assist in a custody or visitation dispute. The justices agreed.
After surveying various provisions in the Family Code, the justices concluded that "in general the Legislature has specified that a party's ability to pay does matter when allocating the financial burdens associated with family law litigation." They further noted that Kevin's motion for reimbursement, along with Anna's opposition to the motion, was most analogous to a request for an award of litigation costs from the other in a contested custody case. The justices also pointed out that Fam C §3111 [authorizing the appointment of child custody evaluators in contested custody cases] calls into question whether Ev C §730 even applies here. Without deciding that issue, the justices compared the two statutes in question. While Ev C §730 and Fam C §3111 require the same minimum professional qualifications for custody evaluators, the two statutes differ in the manner of compensation. Per Fam C §3112, when appointing a court appointed investigator pursuant to Fam C §3111, "'the court shall inquire into the financial condition of the parent, guardian, or other person charged with the support of the minor.'" Upon a favorable finding of ability to pay, the court may order the parent "to repay the court the amount the court determines proper." The justices concluded that the statute (1) imposes an affirmative duty on the court to assess a party's ability to pay; (2) makes a party's contribution to the cost of the evaluator discretionary, not mandatory; and (3) presumes the court may initially bear the costs of an evaluation.
Harmonizing Ev C §§730 and 731(c) and Fam C §§3111 and 3112. . .
As a matter of first impression, the justices held that Ev C §§730 and 731(c) should be harmonized with Fam C §§3111 and 3112 to require courts to consider a party's ability to pay when allocating the cost of an expert appointed pursuant to Ev C §730 when that expert is a child custody evaluator retained in a custody or visitation dispute. The justices noted several reasons in support of this harmonization. First, applying the principle that specific statutes take precedence over more general ones, the justices found that Fam C §3112 is the more specific statute governing the compensation of a court appointed child custody evaluator. The justices next applied the principle that later enacted statutes take precedence over earlier ones and observed that Fam C §3111 is the more recent statute, having been adopted in 1993, while Ev C §730 was adopted in 1965. And finally, Fam C §3111 relies on rules adopted by the Judicial Council and, specifically, Cal Rules of Court, rule 5.220, which requires courts to determine and allocate the costs of child custody evaluations.
The trial court failed to consider all the factors relevant to determine Anna's ability to pay. . .
The justices next concluded that the trial court abused its discretion by ordering Anna to reimburse Kevin without considering all the factors relevant to determine Anna's ability to pay. For example, the trial court stated that it based its allocation of Dr. Nelson's expenses on the ratio of Anna's net spendable income to Kevin's, with an adjustment made only for Anna's child support payments. The justices found this method insufficient, noting that at a minimum, the trial court must take into consideration Anna's basic living expenses, family court-related expenses, and her Chapter 13 plan obligations. The justices further held that the trial court's error was not harmless given that Kevin's resources were vastly superior to Anna's. For example, Kevin's monthly net income was $9,615 whereas Anna's was only $3,036. Moreover, Kevin demonstrated that he had the ability to pay Dr. Nelson's fee since he in fact paid the full amount.
For these reasons, the First District vacated the trial court's order directing Anna to pay $3,469 of Dr. Nelson's fee and remanded the matter to the trial court for further proceedings consistent with its opinion.
The justices referenced the potential for several issues arising from the appointment of child custody evaluators given the different statutory schemes (Ev C §730 or Fam C §3111). Their principal concern was whether Ev C §730 even applies to the appointment of child custody evaluators in custody or visitation disputes given "the Legislature's more specific statutory authorization to appoint them under the Family Code." According to the trial court, the appointment in question was made pursuant to Ev C §730 for Dr. Nelson's "'protection' so that 'he then becomes an expert of the Court, even though the parties are paying for it.'" The justices noted that the trial court and counsel for the parties expressed confusing and, at times, incorrect views about the two statutory schemes. But the justices declined to address this issue since Anna's appeal focused only on whether she could afford the cost of Dr. Nelson's updated evaluation.
10 Witkin, Summary of Cal. Law (11th ed. 2023) P&C, §284
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group) ¶7:256.10