BEDSWORTH, J.—
In 1800, Lord William Thompson Kelvin — the great scientist who first conceived the temperature scale that now carries his name — lamented that, "There is nothing new to discover in physics now. All that remains is more and more precise measurement." Today, in the 144th year of the Field Codes, we wrestle with an issue of first impression. Law students, take note: there is plenty left to be discovered.
Probate Code section 3089 gives authority to probate courts to divide a married couple's community property, even when there is no divorce, if one spouse has a conservator and the remaining competent spouse refuses to "comply" with an order made under article 3 of chapter 2 of part 6 of
The probate judge here equated fees for attorneys and conservators with support and maintenance. In essence he confused the support of a conservatorship with the support of the conservatee. We understand the impulse behind the trial judge's thinking. From an institutional point of view, probate judges are concerned on a regular basis with fee claims by attorneys and conservators, and courts necessarily look to a conservatee's estate as a source of payment for those claims. By dividing the property, the probate judge made the administration of the conservatorship easier. But article 3 is concerned with orders for the support and maintenance of the conservatee spouse, not with expediting professional fee claims. Professionals can collect their fees pursuant to court orders independently of article 3.
In this case the competent spouse, Lynn Bower (Lynn), unquestionably paid for the support and maintenance of her conservatee husband, David. In fact she devoted about 72 percent of the couple's $200,000 marital estate income to making the $12,000 a month payments for David to a home specializing in Alzheimer's care. What she didn't do was comply with the letter of an order of the probate court to pay lump-sum large professional fee claims directly to David's conservator and several other creditors. Instead she either paid those claims directly herself, or those claims were paid indirectly from escrows based on liens asserted by the relevant professionals. The probate judge was concerned that Lynn had acted, as he put it, like "Frank Sinatra, she gets to do it her way."
Based on the literal noncompliance with the terms of the order, the probate judge ordered the community estate of the Bowers divided, with the conservator receiving David's share. Because the probate court erroneously proceeded on the premise that section 3089 is triggered by noncompliance with orders to pay professional fees directly to the conservator in a lump sum, rather than refusal to comply with an order to support the conservatee spouse under article 3, we must reverse the order dividing the estate and remand the matter to the trial level for application of the proper standard to the facts at hand.
Lynn and David were married in 1983. During their marriage they acquired no less than 30 separate parcels
Sometime around 2007, when David would have been about 51 years old (and Lynn about 47), he was diagnosed with frontotemporal dementia, otherwise called FTD.
The record does show David's condition has been more specifically classified as "semantic" dementia, which impairs parts of the brain affecting language. While David appears to have lost the ability to articulate words, or read or write, there is some indication in the record he can communicate his thoughts and feelings through gestures, like a thumbs up sign for yes or crossing his arms over his chest for no. Whether or not his thoughts and feelings are themselves the product of his dementia appears to be an open question.
Beginning in 2007, Lynn began to manage the couple's real property empire alone. During this period, David began more and more to perceive his wife, Lynn, and his children as his enemies. He wasn't exactly banished, like Rochester's wife in Jane Eyre, to an attic, but — apparently, at Lynn's direction — he did begin living in a cottage in back of the family home.
Perhaps because of this estrangement from his family, in June 2009, David signed a power of attorney form giving his sister Andrea control over all his
As if to confirm the family court's characterization of David's lack of capacity, the day after the family law judge dismissed the dissolution action there was an incident in the family home that prompted his temporary hospitalization under section 5150 of the Welfare and Institutions Code. A gun was visible on a counter and David made "shooting motions" toward Lynn and his daughter Rachel. The incident prompted Lynn to call the police, who took David to the "psych ward" at University of California, Irvine Medical Center (UCI). (David's inability to speak would have, if anything, made the gesture more objectively frightening since it could have conveyed more than just ineffable antipathy.)
David was soon transferred, at Lynn's direction, from the UCI center to a facility called Silverado. Andrea, however, objected to Silverado, and took David from Silverado to her own home in Escondido. There he developed a habit of breaking into neighbors' houses to take beer from their refrigerators.
In mid-April 2011, on the heels of the family law court's dismissal of the dissolution petition, Andrea filed this action to have herself appointed as a conservator for David. Andrea was appointed temporary conservator of David's person in May 2011, and also appointed temporary conservator of his estate in December of the same year. Being temporary conservator of his person allowed Andrea, in July 2011, to place David in a Costa Mesa facility known as Autumn Years that was oriented to Alzheimer's patients. In addition to the temporary conservator, the court also appointed an attorney to independently represent David.
The placement in Autumn Years would prove a bone of contention between Lynn and Andrea. Lynn thought the move was "inappropriate" since David had been doing well in Silverado, and she didn't think the Autumn Years
In January 2012, Andrea and Lynn agreed in a stipulated court order, as an interim resolution of Andrea's petition, to have two professional conservators, Lee Ann and Bruce Hitchman, serve as temporary conservators of both David's person and estate, but without power over any community assets. Lynn also agreed to pay all of David's outstanding medical, pharmaceutical, doctor and residential care bills,
But Lynn did not pay all the bills, which the Hitchmans thought should be paid — at least not for another 21 months or so. The unpaid bills that had accumulated by the summer of 2012 included claims submitted by six separate sets of caregivers totaling around $36,000,
By late September 2012, several other matters had accumulated in the court's inventory in addition to the Hitchmans' petition. Andrea's original petition to have herself appointed David's permanent conservator was still outstanding. David's son Warren had just filed a petition proposing to have himself appointed David's conservator. On top of that, Andrea — no longer temporary conservator but now acting in her role as an interested party — filed a section 3080 petition similar to the Hitchmans' to enforce support of David from the community estate.
The trial court responded in a proactive minute order filed in late September, consolidating the various matters and setting them for trial on November 5 — the date the Hitchmans' temporary conservatorship was set to expire. The court proposed to proceed in a logical fashion: First the court would decide whether a permanent conservatorship was necessary at all. If so, it would then decide which of two candidates who had come forward for the post of permanent conservator — Andrea or Warren — should be appointed. (By that time Lynn had thrown her support behind Warren, essentially dropping out of the race for conservator.) Finally, it would decide the Hitchmans' section 3080
Preparatory to the November 2012 trial, a probate court investigator interviewed David, who communicated by either holding up one finger, or giving the thumbs up gesture, to say yes, or by holding up two fingers or crossing his arms over his chest to say no. While the investigator felt that it was "difficult to assess" David's comprehension, to the degree that David was able to make his feelings known, David indicated he was opposed to any conservatorship at all. But if one was going to be imposed anyway, David wanted Andrea appointed — and indicated so three times. He also signaled he didn't want either Lynn or Warren as his conservator.
The November trial resulted in the appointment of Andrea as conservator, largely as the result of David's indicated preference. While the court found David needed a conservator, it also found he was sufficiently mentally competent to intelligently express a desire as to who that conservator should be.
Still, the matters of unpaid bills claimed by the Hitchmans and the management of the conservatorship estate's assets remained outstanding. The court set late February 2013 to hear those matters, though they would ultimately be continued to May 2013. What was accomplished at the February hearing was a stipulation that Lynn would pay $12,000 in a month in temporary support to Andrea as the new conservator (to cover the Autumn Years bills), plus pay another $10,000 to her as a lump sum.
But the court was also clear at the May 2013 trial it would not order the community assets divided then. Andrea had argued that Lynn had essentially starved the conservatorship of operating funds.
Paying all $340,902.92 directly to Andrea was, practically speaking, impossible. To obtain such a large sum, over the next several months Lynn liquidated $536,000 worth of property, resulting in a net receipt of about $432,000 for the marital estate. However, $275,000 of that was "intercepted" via escrow payments of judgment liens filed by the various conservators and
The matter was actually heard in December, and Lynn sought credit as against the $340,902.92 for amounts she had paid to various parties or which had been intercepted in escrow. According to her declaration, Lynn paid Andrea $21,804.15, Attentive Home Care $25,147.69, David Williams $7,670.31 and George Adams $3,873.98.
Andrea controverted Lynn's declaration. Andrea averred she had only received the $12,000 monthly payments for David's upkeep at Autumn Years, disputing that Lynn had paid any part of the $21,804.15, much less the $26,991.90 contemplated in the May order.
There was also a matter of some $63,000 which Lynn had paid her attorney to put into a trust account. The attorney told the court she had given him the money to disburse directly to creditors of the conservatorship, as distinct from paying the conservator directly. The attorney said his hands were tied — his client had directed him about money in his trust account. When the trial judge heard that, his rejoinder was: "I can appreciate that, which makes it easy for the court to find that your client committed the required refusal under Probate Code section 3089 to comply with a court order." (Italics added.)
Lynn's counsel's defense was to distinguish between "support" and accumulated attorney fees. He argued that of the $340,000 required, about $275,000 was for fees, not "support." The trial judge disagreed, pointing out that if caregivers do not receive amounts owed that are past due, it affects future care. But more basically, the court flatly characterized all $340,000 —
Section 3089 presents a textbook case of how standards of review can interact.
Then, after ascertainment of what is meant by "order made under this article" comes a question of substantial evidence: Did the competent spouse with control over the community property refuse to comply with such an order, the contours of which we defined in the de novo review?
And finally, after de novo and substantial evidence, we come to a matter tested under the deferential abuse of discretion standard. Assuming there was substantial evidence the competent spouse did indeed refuse to comply with an "order made under this article," was the trial court's discretionary decision to divide or not divide the community property a reasonable decision?
But there's a further wrinkle to such tripartite level review: a feedback loop. Suppose the probate court proceeds on the erroneous assumption that the scope of section 3089 is much broader than it really is. Trial judges who
One of the best explanations for this feedback loop is given in Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 394 [33 Cal.Rptr.3d 644]. There the court pointed out that a decision made under the wrong standard might very well be reasonable within its own frame of reference, but would still be an abuse of discretion because it would still contravene the specific law that grants the discretion in the first place. And that, we reluctantly conclude, is exactly the case before us.
Article 3 consists of 13 sections. Of those, nine are procedural.
Section 3088 provides a gloss on section 3080's phrase, "support and maintenance." Section 3088 begins, perhaps a bit jarringly, with the seemingly particularized statement that community property can be used for the support of a spouse who is being cared for in a state mental hospital.
And if those statutes are clear about anything, they are clear that neither conservatorship nor attorney fees are to be paid automatically, or as a matter of course, but must always be first approved by the court after a noticed hearing. (See §§ 2640 [noticed hearing], 2642 [noticed hearing], 2643 [power to cut excessive or unreasonable fees], 2643.1 [requirement services be actually rendered], 2645 [court must approve fees and must be to advantage of conservatee].) In fact, section 2647 is extremely clear that such professional fees should affirmatively not be paid without a prior court order.
Further, article 3 takes as its model traditional family law support and maintenance (cf. § 3088), and such support and maintenance is understood in family law as a distinctly different issue from attorney fees. (See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2016) ¶ 11:552, p. 11-163 [advising lawyers to treat separate issues separately, and noting spousal support and attorney fees and costs are separate issues].) Support, after all, is an end in itself; attorney fees are merely a means to an end. (Compare In re Marriage of Benjamins (1994) 26 Cal.App.4th 423, 430-431 [31 Cal.Rptr.2d 313] [noting support typically includes things like housing, feeding, clothing, health, proper recreation, vacation, traveling expenses, proper care, nursing, and medical attendance in sickness] with Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 252 [91 Cal.Rptr.3d 241] [the point of attorney fee awards in family law proceedings is to assure a fair hearing with two sides equally represented].)
Our conclusion is confirmed by the legislative history of article 3. The article was the product of the 1980 Commission Report. Once again the year is significant. The 1980 Commission Report came out only five years after the management and control of community property was changed from a presumption the husband would have that management and control to joint control by both spouses.
Sometimes lacuna are important. We have not found in the legislative history of article 3 is any indication the Legislature wanted to allow community property to be divided sans divorce in order to pay the professional fees attendant on conservatorships. Nor has able counsel representing the conservatorship cited us to any such indication.
Andrea posits that the word "maintenance" (as in "support and maintenance") is enough to encompass orders for conservator and attorney fees, but we think such a use too broad. Essentially, Andrea's position turns section 3089 into a terminating sanction. What is forgotten is that attorney and conservatorship fee orders are independently enforceable. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 610 [47 Cal.Rptr.2d 24] [because previous attorney fee sanctions are independently enforceable, it is an abuse of discretion to impose a terminating sanction on a litigant for failure to pay a previous attorney fee order].)
In fact, their independent enforceability played out in this case and demonstrates why the Legislature might not have considered it necessary to include such fees within the ambit of section 3080: The fee claims here were all paid from the liquidation of real property via lien claims even before Lynn had the chance to forward on the money to the conservator. Further, in a section 3089 situation, by definition the couple is still married, so attorney and conservatorship fee orders would represent judgments against the community estate just like any other judgment based on a community debt. (See Newland v. Superior Court, supra, 40 Cal.App.4th at p. 615 ["These orders have the force and effect of a money judgment, and are immediately enforceable through execution, except to the extent the trial court may order a stay of the sanction."].)
Division of community property, by contrast, is a much more drastic remedy that may, at least in situations like the Bowers, upset years of a couple's financial planning. And again this case provides an example as to
In either case, the court's understanding was too broad under the relevant text and legislative history. And we would add this gloss to the Legislature's handiwork: In cases involving considerable amounts of litigation — and since conservatorship litigation often involves intra-family feuds that's a reasonable expectation — equating professional fees with support has the effect of unfairly penalizing the ability of the competent spouse to litigate his or her side of the story. The more such a spouse resists, the larger the other side's fees, and the harder it is to pay them. And again a vicious circle is created making division of the community estate inevitable, particularly if, as the trial court required here, payment of one lump sum to one specific person is required, without even the equity of the competent spouse receiving credit for amounts paid from escrow via lien assertions.
The relevant question was whether Lynn had refused to comply with a support and maintenance order under article 3, not whether she had refused to pay attorney and conservatorship claims in a lump sum to the conservator. And when it comes to actual support and maintenance, the fact is Lynn had continuously paid $12,000 and devoted almost three-quarters of the income
Let's focus on that "almost all" for the moment. Perhaps, if the trial court had isolated those few creditor claims of the conservatorship that could be said to be for genuine support and maintenance — those few claims by creditors the Hitchmans identified as being for direct out-of-pocket expenses on David's behalf as distinct from professional fees — and then, having isolated those relatively small amounts, exercised its discretion under section 3089 and divided the community property based entirely on them, we might be able to say the trial court's decision was harmless error.
The order of May 20, 2014, dividing the Bowers' community property is reversed, with directions to the trial court to consider again the question of whether the marital estate should be divided, using a standard of whether Lynn refused to comply with orders for the support and maintenance of conservatee David Bower, as distinct from paying professional fees. In the interests of justice, each side will bear its own costs on appeal.
Rylaarsdam, Acting P. J., and Thompson, J., concurred.
In the case before us, the difficulty manifests itself in the tension between the two existing trial court assessments of David's competency. The family court concluded that David was not competent enough even to have a preference as to whether he wanted to remain married to Lynn or not. (But see In re Marriage of Greenway (2013) 217 Cal.App.4th 628, 652-653 [158 Cal.Rptr.3d 364] [though husband had mild dementia, his sworn petition alleging irreconcilable differences, plus repeated requests for trial preference, and declarations attesting to fact marriage was "bad" for last 30 years were held sufficient to find irreconcilable differences].) But the probate court concluded that David was competent enough not to want Lynn or his son as conservator. Since Lynn has not challenged the probate court's decision to make Andrea David's permanent conservator, we do not have occasion in this case to try to reconcile these seemingly opposed factual findings at the trial level. (Cf. § 1810 [a person with "sufficient capacity ... to form an intelligent preference" may nominate his or her own conservator].)
We note that part of Andrea's claim was for a bond as temporary conservator, as distinct from David's own living expenses.
For her part, Lynn argued that, strictly speaking, there was no community property at all because of the way properties in the estate were held, i.e., in trust. This argument did not persuade the probate court and Lynn has the good sense not to press it on appeal. (See In re Marriage of Perry (1997) 58 Cal.App.4th 1104, 1109 [68 Cal.Rptr.2d 445] [just because property is held in living trust does not mean it still isn't subject to child support claims].)
We grant Lynn's motion on appeal to take judicial notice of portions of the legislative history of Assembly Bill No. 132 (1981-1982 Reg. Sess.), which includes the 1980 Commission Report.
