Do Illegal Disclosures in a Family Law Case Warrant Sanctions Against Attorneys?

In the recent case of Shenefield v. Shenefield, Mark Shenefield filed a request for order (RFO) with the court, seeking joint legal and physical custody of the child he shares with Jennifer Shenefield.

In his declaration, Mark quoted from and referenced the contents of a confidential, court-ordered psychological evaluation undertaken during Jennifer’s previous marital dissolution. Mark’s attorney Karolyn Kovtun filed the paperwork.

Jennifer opposed Mark’s request and sought sanctions for violations of Family Code sections 3111, subdivision (d) and 3025.5, for unwarranted disclosure of the confidential custody evaluation.

The court ordered the issue of sanctions to be heard at trial. Jennifer’s trial brief detailed her arguments for why the court should impose sanctions on both Mark and Kovtun. Mark did not file a trial brief.

Following trial, the court issued sanctions against Mark in the amount of $10,000 and Kovtun in the amount of $15,000.

Kovtun challenged the sanctions, and a different court heard Kovtun’s request to vacate the sanctions imposed against her and denied the request.

On appeal, Kovtun argued the court improperly sanctioned her because (1) attorneys cannot be sanctioned under section 3111; (2) the notice she received did not comply with due process standards; (3) the court lacked personal jurisdiction over her; (4) the court failed to enforce the safe harbor provision of Code of Civil Procedure section 128.7; and (5) the court improperly admitted and relied on a transcript of a meeting between Kovtun, Mark, and Jennifer.

The appellate court found Kovtun’s arguments meritless, and affirmed the trial court's ruling.

Jennifer and Mark were married and they shared one child.

In 2017, the court issued a domestic violence restraining order against Mark at the request of Jennifer.

In September 2017, Mark pled guilty to misdemeanor battery on a spouse.

The court issued a criminal protective order against Mark. Jennifer was given sole physical custody of their child. Kovtun was Mark’s attorney of record.

Jennifer filed for marital dissolution from Mark in September 2018.

Mark filed an RFO seeking joint legal and physical custody of the couple’s child. In Mark’s attached declaration, after detailing allegedly false allegations Jennifer made against her previous husband, Mark wrote: “Jennifer was ordered to undergo a Evidence] Code §730 evaluation by Dr. Stephen Sparta who suggested that she would do it again if she felt the ends justified the means.”

Then Mark explained the court presiding over Jennifer’s previous marital dissolution matter ordered a psychological evaluation, which was performed by Dr. Steven Sparta.

Mark quoted directly from that report for nearly a page of his declaration, single-spaced. Mark again discussed content from Dr. Sparta’s evaluation in paragraph 10 of his declaration and referenced some of the details again in paragraph 15. Kovtun was his attorney of record.

Jennifer filed her responsive declaration to Mark’s RFO, and argued that Mark’s RFO included an illegal disclosure of a confidential medical evaluation under Evidence Code 730, Family Code 3111 and Family Code 3025.5. Her response also noted that Mark had published the contents of the confidential evaluation on Facebook.

The parties appeared in court and the trial court set the matter for a bifurcated trial, and the parties were told the court would determine custody, visitation, and sanctions at trial.

At the trial readiness conference, the court identified issues for trial: custody, visitation, child support, spousal support, and sanctions. No one objected to the litigation of sanctions.

Jennifer filed her trial brief and argued that sanctions were warranted against both Mark and Kovtun pursuant to section 3111, subdivision (d).  She maintained that Kovtun disclosed the contents of the previous court-ordered custody evaluation maliciously, recklessly, and without substantial justification.

Mark did not file a trial brief.

In its Final Ruling, the court found that Mark provided excerpts of the child custody evaluation from a previous dissolution matter. It noted that Jennifer asked the court to impose sanctions. It confirmed that it had identified the request for sanctions as an issue for trial.

The court stated that Kovtun was personally served Jennifer’s trial brief, which identified the sanctions as an issue to litigate. The court wrote that counsel was aware Petitioner would be requesting sanctions related to the unwarranted disclosure of the 730 Custody Evaluation in violation of Family Code §3111(d), and this request was reiterated in Petitioner’s Trial Brief.

It found that Mark and Kovtun had actual notice of the request for sanctions, as well as an opportunity to respond to and oppose the request.

The court then found that Kovtun was a seasoned attorney, and as such, she should have been aware of sections 3025.5 and 3111, subdivision (d).

It also found Kovtun was reckless in filing documentation that disclosed a confidential custody evaluation.

It concluded Kovtun intended for the court to rely on the former custody evaluation from the unrelated case. It also found Kovtun was not a party to the unrelated case under section 3025.5, and thus sanctions were appropriate.

The court imposed $15,000 in sanctions against Kovtun, payable at $300 per month, starting April 1, 2020, with interest accruing at an annual rate of 10 percent.

The court separately concluded Mark’s disclosure of the content from the custody evaluation was unwarranted and without substantial justification, and it imposed monetary sanctions against Mark in the amount of $10,000.

Section 3111, subdivision (a) allows a trial court to order a confidential custody evaluation when the court determines that doing so is in the best interest of the child. The corresponding report may not be disclosed to any person outside of the parties to the action, law enforcement, counsel for the child, or if a court orders the disclosure for good cause.

Section 3111, subdivision (d) states, “If 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.”

The monetary sanction should be an amount that deters repetition of the conduct; it may include reasonable attorney’s fees, costs incurred, or both, but the sanction shall not impose an unreasonable financial burden on the party against whom the sanction is imposed.

Kovtun’s main argument is that the statute does not apply to her because she is an attorney, not a party to the litigation, and the statute authorizes sanctions only for parties. She argued the plain language excludes attorneys, and the inclusion of attorneys in the statute is not supported by the definitions applicable in family court, which she contends define “party” to exclude an attorney of record.

The statute states the party against whom the court may appropriately impose sanction is the “disclosing party.” The modifying word “disclosing” describes which parties are included in the statute: any person who discloses the confidential information when doing so is unwarranted.

The plain language of the statute does not limit its application to named litigants; attorneys can make unwarranted disclosures of the confidential information.

The duty imposed by Family Code section 271 requires a party to a dissolution action to be cooperative and work toward settlement of the litigation on pain of being required to share the party’s adversary’s litigation costs.

And the Legislature wanted to deter the disclosure of information contained in child custody evaluations: “Because parties are ordered to undergo an evaluation, it is imperative that the confidential nature of a report be protected to ensure the full cooperation of those involved and to encourage full disclosure to the professionals."

Thus, the intent of section 3111, subdivision (d) was to establish clear penalties for distributing the information and ensuring that all interested parties are aware of the penalties. The bill sought to ensure that sensitive information obtained for the court remains confidential.

The legislative purpose of section 3111, subdivision (d) was discussed in In re Marriage of Anka & Yeager. There, the appellate court affirmed the imposition of sanctions against an attorney who violated section 3111 for asking questions in a deposition that elicited information from a child custody evaluation report ordered during a previous marriage dissolution.

The court explained that the attorney’s willful disclosure of confidential information protected by statute harmed the opposing litigant and also harmed the entire process of child custody evaluation, implicitly recognizing the need for truthful communications in evaluating a child’s best interests.

Kovtun argued that if section 271 does not authorize sanctions to be paid by attorneys, neither does section 3111. Attorneys are subject to sanctions for engaging in the behavior prohibited by Family Code section 271, like failing to work toward settlement, via Code of Civil Procedure section 128.5.

Kovtun also argued the definitions applicable in family court preclude attorneys from sanctions under section 3111 because, she contends, Rules of Court, Title Five, the Family and Juvenile rules, define “party” to exclude attorneys of record.

California Rules of Court, rule 5.2(b)(6) defines “party” to include “a person appearing in an action,” and it explains that “[a]ny designation of a party encompasses the party’s attorney of record, including ‘party.’ ”

Indeed, the definition of “party” in Title Five is consistent with the definition provided in Title One, which contains the rules applicable to all courts. California Rules of Court, rule 1.6(15), defines a “[p]arty” as “a person appearing in an action,” and it also notes that “party” “includes the party’s attorney of record.”

Thus, Kovtun’s position on this point was incorrect; the Rules of Court define “party” to encompass a party’s attorney of record.

Kovtun contended Jennifer was required to file an RFO because she sought sanctions. However, when a party to a marital dissolution moves to modify an existing court order, the responding party may file a responsive declaration in which the party may request sanctions in addition to opposing the requested order.

Because a sanction is necessarily responsive to the moving party’s conduct in litigating a motion, allowing a court to consider the moving party’s conduct at the same time as his motion without the need for a separately filed motion for fees also avoids possible duplicative, repetitious pleadings.

 In other words, there is no requirement that a party seeking a sanction does so in a separate RFO when the issue can be efficiently and properly handled in conjunction with the original request for order.

Due process requires “notice, an opportunity to respond, and a hearing.” The purpose of due process is to provide affected persons with the right to be heard “ ‘at a meaningful time and in a meaningful manner.’ ”

When sanctions are at issue, due process can be satisfied if the court gives a clear warning identifying the anticipated grounds for the sanctions or if those grounds are identified by the opposing party, and the court provides counsel with an opportunity to respond at least orally.

Kovtun contended sanctions were improper because the court did not have personal jurisdiction over her. She argued that personal jurisdiction only attaches when a person is personally served with notice of possible sanctions.

Kovtun misunderstood the source of the court’s authority here. An attorney is an officer of the court, generally subject to the court’s control as a person connected with a judicial proceeding before the court.

As the California Supreme Court explained in Bauguess v. Paine, under certain circumstances both trial and appellate courts are authorized to order counsel to pay the opposing party’s attorney’s fees as a sanction for counsel’s improper conduct.

In doing so, courts draw on equitable power derived from the historic power of equity courts, and supervisory or administrative powers which all courts possess to enable them to carry out their duties.

Clear from the court’s discussion was that courts have inherent power to punish via the contempt process, which incorporates procedural safeguards, and that the Legislature can provide by statute the authority to impose sanctions.

Such is the case here, and Section 3111 granted the court the authority to impose sanctions on counsel.

LESSONS:

1.         A trial court to order a confidential custody evaluation when the court determines that doing so is in the best interest of the child.

2.         The corresponding report may not be disclosed to any person outside of the parties to the action, law enforcement, counsel for the child, or if a court orders the disclosure for good cause.

3.         If 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.

4.         Family Code section 271 requires a party to a dissolution action to be cooperative and work toward settlement of the litigation on pain of being required to share the party’s adversary’s litigation costs.

5.         An attorney is an officer of the court, generally subject to the court’s control as a person connected with a judicial proceeding before the court.