Monday, October4, 2010
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C.A. Questions Judge’s Impartiality in Contentious Divorce
By SHERRI M. OKAMOTO, Staff Writer
The Fifth District Court of Appeal on Friday rebuked a former Tulare Superior Court judge for his handling of a contentious divorce and disqualifying him on remand since his conduct at trial created a doubt that he would be impartial if the case were returned to him.
Retired Judge William Silveira Jr., sitting on assignment, abused his discretion in failing to equalize the abilities of Mary Beth and Casey Tharp to litigate their dispute and impose sanctions against Casey Tharp for his bad faith conduct, the panel said.
This resulted in Casey Tharp “being rewarded for his failure to follow court orders by causing Mary Beth to feel helpless and suspicious” since she “did not have the financial ability to fight Casey, she was losing custody of her children because of her emotional state, and it appeared to her the family court had turned against her,” Justice Dennis A. Cornell wrote in his decision for the appellate court.
Heir to Fortune
When Casey Tharp—the heir to a commercial truck dealership fortune and vice-president of his family’s corporation—filed for divorce in 2007, Mary Beth Tharp sought an advance of $50,000 for attorney fees, asserting that she had not been employed outside of the home for the last eight years of the marriage and had no independent income or assets.
She also requested fees for a forensic accountant, reporting that Casey Tharp’s corporation owned several subsidiary companies with combined annual sales of approximately $52 million and assets worth $40 million.
Silveira subsequently ordered Casey Tharp to pay $22,500 to his wife’s attorney based on a disparity of income—reserving for the future a determination of whether $20,000 of that amount should be deducted from Mary Beth Tharp’s share of community property—and to pay $2,500 for an “accounting evaluation.”
In November 2008, Mary Beth Tharp filed the first of three motions seeking attorney fees and sanctions from her husband. Her attorney provided a lengthy declaration supporting the motion, with time records and a 53-page chronological, procedural, and substantive history of the case attached. The total current and future attorney fees requested were approximately $310,000.
The discovery referee appointed to the case recommended granting the motion after finding that Casey Tharp had delayed responding to discovery, without substantial justification, even after being ordered to respond.
Silveira denied the motion in February 2009, opining that there was no basis for a further award of needs-based fees. Mary Beth Tharp sought reconsideration, pointing out that her husband had incurred $125,491 in attorney fees and costs, with his corporation paying virtually all of the bills, while she had only been given $22,500.
The judge denied the motion for reconsideration as well, making a total of 32 findings which placed much of the blame for the protracted litigation on Mary Beth Tarp, including a finding that “it is not the obligation of the court to ferret out and determine, based on the billing statements of [Mary Beth Tharp’s] attorney, which fees were fair and which were unfair,” and that the total fees were “grossly excessive.”
Mary Beth Tharp filed a third motion for attorney fees in March 2009 after lowering her request to $180,977.86.
‘Protracted Discovery’
In ruling on this third motion, Silveira criticized Mary Beth Tharp’s efforts to determine the value of her husband’s corporation and his financial holdings, saying that she had engaged in “pro-longed and protracted discovery efforts regarding issues which are far removed from the facts before the court.”
Silveira however awarded $20,000 to cover her costs through trial, payable upon the conclusion of proceedings.
Cornell explained that Silveira’s ruling that he was not going to review the billing records submitted by Mary Beth Tharp’s attorney before summarily denying her request for fees was “sufficient grounds, by itself, to reverse the family court’s decision.”
He emphasized that “[i]t was a clear abuse of discretion to refuse to spend the necessary time to review and consider the time records and billings of [Mary Beth Tharp’s attorney] in a case the family court had deemed complex.”
The justice noted that the record evidence before the family court at the time of the hearings on the attorney fees requests established “a considerable disparity of income and assets” between the parties, and so Silveira abused his discretion in failing to undertake an analysis of Mary Beth Tharp’s need for assistance in order to “level the playing field.”
Cornell added that the plain language of Family Code Sec. 2107(c) required Silveira to award Mary Beth Tharp attorney fees by way of sanctions in light of her husband’s repeated failure to respond to discovery and false assertion that there was an antenuptial agreement which confirmed that all property owned by him was his separate property and all of his income before, during, and after the marriage was his separate property.
Silveira’s finding that Mary Beth Tharp had engaged in excessive or irrelevant discovery was belied by the fact that her efforts were taken pursuant to the case management plan and that her motions to compel the discovery had been granted, Cornell said.
Joined by Justices Gene M. Gomes and Stephen Kane, Cornell ordered the matter remanded for consideration of the wife’s attorney fee requests and the appropriate amount of sanctions to deter the husband from future misconduct.
He opined that assignment to a different judicial officer was appropriate since “fairness and the appearance of fairness will be achieved only if the entire case is reassigned to another judicial officer.”
The case is In re Marriage of Tharp, 10 S.O.S. 5669.
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