Tuesday, October 31, 2006

Filed appeal brief

I just filed this appeal brief:
This concerns the dissolution of a marriage between AngryMom and myself, George AngryDad. AngryMom and I were married for almost 7 years when she filed for divorce in Oct. 2003. We have 2 kids. Initially we shared 50-50 custody as per a signed marital settlement agreement. The agreement also covered asset dissolution, support, and had a parenting plan.

In June 2004, AngryMom hired Ms. Jennifer J. Gray as her attorney, and then made an assortment of allegations in support of a motion to gain sole legal custody of the kids. On Nov. 16, 2004, AngryMom was granted primary custody temporarily, without any fact-finding or testimony. Judge Kelly ordered a return to 50-50 custody after a trial on Mar. 25, 2005. Comm. Joseph took over the Santa Cruz family court in June 2005, and he sent us both off to court experts for ink blot tests and co-parenting evaluation. We returned to 50-50 custody in Jan. 2006.

On four occasions, Ms. Gray asked for attorney fees, and Judge Kelly granted part of her request, and denied the rest.

Ms. Gray withdrew from the case in Oct. 2005. AngryMom is a lawyer herself, and she went back to representing herself. According to AngryMom, Ms. Gray’s total bill for the case was $54,892.54. Of that, I have paid a total of $20,000 and AngryMom paid about $10,000. $6,500 is under dispute (along with a child support order) as part of Appellate Case H029xxx.

AngryMom moved for additional attorney fees at an April 17, 2006 evidentiary hearing. That April 17 hearing upheld the validity of our Nov. 2003 marital settlement agreement. With no explanation, she rescheduled her attorney fee motion for May 18, 2006, and submitted a declaration from Ms. Gray. [CT p.120-123]

At the May 18, 2006 hearing [CT p.124-129, RT p.3-5], I said that I was disputing most of the substance of Ms. Gray's declaration, and asked to cross-examine her. Comm. Joseph refused, and ordered me to pay $10,000 in Ms. Gray's fees, and another $5,000 for an appeal of a previous order. [CT p.136-140, RT p.5-8]

The appellate court has jurisdiction to review family court attorney fee orders.

Issues presented
When a motion for attorney fees is backed by a declaration, should I have the opportunity to challenge the allegations in that declaration?

Can I be denied the opportunity to cross-examine a witness against me?

I contend that Ms. Gray's work has been entirely irresponsible and destructive. She has been dishonest with me and the court throughout the case. She lied on her declaration for fees. She didn’t even protect any of AngryMom’s legitimate rights, as two years of litigation has just brought us back to the signed settlement we had agreed upon before Ms. Gray took the case.

I don’t expect this appellate court to determine the correction of my contentions. My complaint is that the lower court did not address them. If I am to be ordered to pay $10,000 for Ms. Gray’s work, then there should be some demonstration of facts to support that claim, and some opportunity for me to rebut whatever allegations and arguments are used. That did not happen, and I believe that this court should find it to be reversible error.

I have a right to confront witnesses against me.
Comm. Joseph’s justification for paying Ms. Gray $10,000 is based on her bill for work between May 13, 2005 and Oct. 2005. He did not see her bills or know what work she really did. He doesn’t even know why she withdrew from the case. All she did during that time period was to attend a couple of status meetings, ask for more evaluations, and try to collect her attorney fees.

What Comm. Joseph did have was a declaration from Ms. Gray [CT p.120-123] with various allegations intended to justify the attorney fees. Perhaps he would have ordered the fees without any evidence, but once a declaration is submitted, I have the right to challenge it.

A declaration is just hearsay unless I have to opportunity to cross-examine the witness. It was reversible error for Comm. Joseph to have refused to give me that opportunity, when I had demonstrated that there were pertinent factual allegations in dispute.

The Court had opportunity for fact-finding, but refused
The motion for attorney fees was originally intended to be heard at a fact-finding hearing on April 17. 2006. There was plenty of time at that hearing to address the matter, but it was put off until April 28, 2006 and again to May 18, 2006 for reasons unknown to me. There was less time on May 18, 2006, but Ms. Gray was present and could have testified. Or her testimony could have been heard at another date. There was no urgency, as Ms. Gray was not representing AngryMom anymore, so payment or collection of some old fee would have no bearing on whether AngryMom's interests were protected going forward.

Trial court failed to consider the factual factors
According to AngryMom’s brief, the trial court must consider ten factors in addition to the parties’ needs and abilities. [CT p.13] Ms. Gray’s declaration [CT p.120-123] is organized around those ten factors, and includes at least one factual assertion for each. I dispute several of those assertions, including the time she spent on the case and the success of her efforts. It is an error for the trial court to ignore my factual disputes, because without resolving them, there is no way for it to consider those ten factors.

The lower court’s attorney fee order must be reversed. I should not have to pay anything for Ms. Gray’s work. My $20,000 should be refunded.
I sent 5 copies to the appellate court, 4 copies to the state supreme court, 1 copy to my ex-wife, and 1 copy to the local family court.

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