Bayer v. Guttbinder

Jul 24, 2026
A174545

Steven Guttbinder and Eve Bayer married in 2015 and have one child. Bayer petitioned for dissolution in 2019. The parties have been litigating ongoing custody issues in family court. This particular appeal by Guttbinder is from the family court‘s order dated August 28, 2025 (the August 28 order). Guttbinder contends that the family court erred by “refusing live testimony” at the hearing that preceded the August 28 order, erred by striking letters from his therapists as hearsay, abused its discretion by “fail[ing] to engage the neutral roadmap” in a Family Court Services report, and abused its discretion in imposing sanctions against him. We affirm.

BACKGROUND

We draw our description of some of the background from our opinion in another appeal in this matter, Bayer v. Guttbinder, (Jun. 29, 2026, A175180) [nonpub. opn.] (Bayer I). As we stated in Bayer I:

“In December 2024, Guttbinder filed an Ex Parte Request for Order. Guttbinder requested changes to child custody and visitation and the removal of Jamie Duddy as parenting coordinator.

“Bayer opposed the Ex Parte Request for Order. In her responsive declaration to Guttbinder‘s Ex Parte Request for Order, Bayer checked the box next to ‘ATTORNEY‘S FEES AND COSTS’ and noted: ‘(FC §271 SANCTIONS RESERVED),’ and in her accompanying memorandum of points and authorities, Bayer reiterated the point. Bayer filed an updated statement of issues on April 1, 2025, and once again stated she had ‘sought reservation over § 271 sanctions for [Guttbinder‘s] unsupported and harmful [Request for Order],’ adding that, at the hearing, she would seek the fees she had ‘incurred since December 2024 to defend herself against his [Request for Order], totaling $25,386.’ [(Fn. Omitted.)]

“In his reply to Bayer‘s update, Guttbinder requested that the family court deny Bayer‘s request for attorney‘s fees and instead award him attorney‘s fees and costs as sanctions against Bayer pursuant to section 271. . . .

“On May 13, 2025, the family court held a hearing on Guttbinder‘s Ex Parte Request for Order. . . . [¶] . . .

“The family court concluded that it was ‘not going to order a step-up [in parenting time] . . . at this time,’ although it later noted: ‘I‘m not saying you could never have a step-up in time, but from what I‘m seeing right now there are still problems here that aren‘t addressed and I‘m concerned about increasing time or making it unsupervised.’ [(Fn. omitted.)] [¶] . . . [¶] . . .

“At the end of the hearing, the family court stated: ‘[T]here‘s a request for sanctions. [¶] And, frankly, I think sanctions are warranted.’ The family court noted: ‘[T]his should not had been filed as an ex parte. . . . [T]hat‘s not what emergency ex parte requests are for. . . . It resulted in additional pleadings that didn‘t really have to be filed in this case as well.’ The family court concluded: ‘I‘m going to order [sanctions] in the amount of $5000 . . . to be paid . . . directly to . . . [Bayer‘s]

counsel. [¶] . . . [E]veryone‘s got their positions. I don‘t find them to be completely unreasonable so I‘m not going to order additional sanctions on top of that.’

“The family court issued a written order, filed on June 27, 2025. Among other things, and as stated at the hearing, the family court granted Guttbinder‘s request to remove Jamie Duddy as parenting coordinator (and Duddy‘s request to withdraw), denied Guttbinder‘s request for unsupervised parenting time, and did not order a custodial ‘step-up.’ The family court ordered Guttbinder to pay $5,000 in attorney fees to Bayer‘s counsel‘s office, and denied Bayer‘s request for additional sanctions. The court found that sanctions were ‘warranted in this matter, as the issues were not emergencies and therefore not needed on an ex parte basis,’ and ‘a custodial step-up plan not going up quickly enough is not considered an emergency.’ ”

At the May 13 hearing and in the June 27 order, the family court also ordered the parties to use Our Family Wizard for “all non-urgent communication.”

We affirmed the family court‘s order in Bayer I.

On July 14, 2025, Guttbinder filed a new Request for Order seeking changes in child custody and visitation. In his supporting declaration, Guttbinder claimed a “significant change of circumstances.” He stated: “The declarations from my current therapist and psychiatrist are not offered to re-litigate a prior diagnosis but as new, current evidence from the professionals actively treating me today.” Guttbinder attached 25 exhibits, totaling 77 pages, to his declaration. The exhibits included a report prepared by Family Court Services in February 2025 that summarized the parties’ agreement on a “progressive schedule” for Guttbinder‘s parenting time, with a “transition” to unsupervised visits after two sessions of coparent counseling and a “transition” to “overnights” after six sessions. And the exhibits also included multiple “reports” and “analyses” written by him, bearing such titles as

“Report on the Coordinated and Prejudicial Submission of the Former Parent Coordinator‘s Letter,” “Report on Former Parent Coordinator‘s Mismanagement of the Release of Information (ROI) Process,” “Report on Unresolved Financial Issues and [Bayer‘s] Pattern of Non-Cooperation,” “Analysis and Rebuttal of Opposing Counsel‘s ‘Cease and Desist’ Letter of May 23, 2025,” “Report on Questionable Billing Practices and Services Not Rendered by Former Parent Coordinator Jamie H. Duddy,” “Report on [Guttbinder‘s] Good-Faith Efforts to Utilize the Parent Coordination Process and Address Grievances,” and “Analysis of Bias in the Termination Letter of Jamie H. Duddy, M.F.T.” (Capitalization and bolding omitted.)

Thereafter, Guttbinder submitted multiple additional filings, including a Request for Order on July 30, 2025, to advance the hearing, and a declaration dated July 28, 2025, in which he accused Bayer of lying under oath, stating: “As just one example of the bad faith underlying this entire conflict, [Bayer‘s] responsive declaration falsely characterizes my collaborative May 16 . . . message as a ‘threat.’ This claim is verifiably false . . . . This willingness to lie under oath about verifiable facts demonstrates that their current procedural arguments are not made in good faith and are part of a larger pattern of abuse.”

Guttbinder also filed a declaration dated July 18, 2025, in which he requested sanctions in the amount of $50,000, an amount that he asserted was “not chosen lightly” and was “meant to send a clear and unambiguous message that the Court‘s orders are not optional, that the truth is not a matter of convenience, and that this profound and sustained abuse of the legal process will not be tolerated.” In a supplemental declaration filed on August 18, 2025, Guttbinder requested a ”[Family Code] § 271 award (fees/costs) at a level sufficient to deter repetition, consistent with § 271‘s

purpose and the guidance in [In re Marriage of Feldman (2007) 153 Cal.App.4th 1470 (Feldman)] and [In re Marriage of Davenport (2011) 194 Cal.App.4th 1507 (Davenport)],” including $35,250.19 of attorney‘s fees he incurred before the May 13 hearing. He stated: “Additionally, while this supplemental focuses on post-May 13 conduct, Family Code § 271 allows the Court to consider the entire course of litigation in fashioning a sanctions award. [Citations.] The same pattern now evident in the recent filings was already underway before May 13, including Petitioner‘s refusal to implement the February 6, 2025 [Family Court Services] agreement, shifting positions regarding the Parent Coordinator‘s authority, and failures to meaningfully meet and confer. Accordingly, I respectfully request that the § 271 award include the reasonable attorney‘s fees I incurred before May 13, 2025, as a direct result of that conduct.”

Guttbinder filed an income and expense declaration (FL-150), in which he disclosed $397,000 of “[s]tocks, bonds, and other assets [he] could easily sell,” although he noted that these assets are “personal investments” he had “set aside for [his] long-term future” which “represent [his] sole retirement savings” because he “work[s] in a project-based industry without access to a traditional 401(k) or pension plan.”

In a responsive declaration filed on August 12, 2025, Bayer sought $50,000 of attorney‘s fees, stating that “[t]he last [Request for Order] cost [her] over $40,000” between December 2024 and June 2025, and “this [Request for Order] [would] cost [her] approximately $15,000 to oppose.” Bayer noted that over the prior month Guttbinder had filed over 15 separate pleadings, totaling more than 230 pages. Bayer‘s counsel also filed a declaration, which stated: “[I]t cost [Bayer] $40,000 to oppose the onslaught of litigation and she only received $5,000 from the May 13 court-ordered fee

award.” He went on: “[B]ased on [Guttbinder‘s] July [Request for Order] and litigation related to his refusal to meet and confer on scheduling, including the hearing, [Bayer] will have incurred $13,810 for [Guttbinder‘s] ‘do-over’ [Request for Order].” “[Guttbinder] has the ability to pay the $13,810 in fees currently requested, as well as his own fees, from his income and separate property assets.”

Thereafter, Guttbinder filed two more declarations and one “update” prior to the hearing and issuance of the August 28 order. (Capitalization omitted.) He did not contend in any of those filings that the $50,000 sought by Bayer was untethered to her attorney‘s fees and costs.

At the hearing on August 25, 2025, the family court stated: “[I]f there‘s something that you don‘t have in your numerous papers, I‘ll give you a chance to do that now.”1 Guttbinder replied, “There‘s a physical exhibit if you‘d like[,]” and the family court stated: “I don‘t need to see that. Anything else you want to tell the Court that‘s not in your papers?” Guttbinder replied: “I think I‘m all set.” He did not ask to present live testimony, ask for a continuance, or argue that Bayer‘s request for sanctions was untethered to attorney‘s fees and costs actually incurred.

On August 28, 2025, the family court issued the order at issue in this appeal. The family court wrote that the current orders had been made on May 13, 2025, and that “[j]ust two months later, on 7/14/25, [Guttbinder] again requested a modification and step up plan.” The family court found “there has been no change of circumstances which warrant modifying the current orders” and denied Guttbinder‘s requests. Apparently regarding the letters from Guttbinder‘s therapists, the family court stated: “Even if the

Court were to look past the hearsay issues, . . . the Court is concerned about the effectiveness of said treatment.”

The family court wrote: “Furthermore, [Guttbinder] does not realize that some of the things he blames others for, are the result of his own misunderstanding. For example, [he] states that [Bayer] sent via Our Family Wizard a message regarding a nonessential medical procedure, and states that this is a violation of the Court‘s May 13, 2025 order limiting Our Family Wizard to logistics and emergencies. [Guttbinder] is incorrect. The Court had ordered that Our Family Wizard is to be used for all non-urgent communication between the parties; thus, it was appropriate for [Bayer] to send such a message via Our Family Wizard.”

The family court also stated: “[Guttbinder] has filed approximately 19 pleadings from 7/14/25-8/25/25, not including pleadings regarding fee waivers or proofs of service. Many of these pleadings were not concise and repeated the same arguments, and several of the pleadings went over the page limits allowed under the law, which result in unnecessarily increased fees for [Bayer] to review and respond to.” Describing the tenor of the pleadings, the family court wrote: “Many of [Guttbinder‘s] pleadings include language which cross the line of professional advocacy, into hostility. His pleadings include hostile language accusing Petitioner/her attorney of many things . . . .”

Finally, the family court found that Guttbinder‘s conduct “frustrated the policy of promoting settlement and unnecessarily increased the cost of litigation under [section] 271.” Stating that it had reviewed Guttbinder‘s income and expense declaration, the family court ordered Guttbinder to pay $20,000 in sanctions directly to Bayer‘s counsel.

Guttbinder appealed.

DISCUSSION

A. Due Process and Family Code Section 217

Guttbinder contends that the family court violated due process and Family Code section 217 by “refusing live testimony” and striking his “primary evidence,” namely, the letters from his therapists, as hearsay.2 We disagree.

First, Guttbinder cannot successfully complain that the trial court refused live testimony that he never sought to present. (See In re Cheryl E. (1984) 161 Cal.App.3d 587, 603 [“A party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do . . .“].) Section 217, subdivision (a), provides that, “[a]t a hearing on any order to show cause or notice of motion . . . , absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing . . . .” But in order to present live testimony from a third-party witness, a party must file and serve a witness list with a brief description of the anticipated testimony. (Fam. Code, § 217, subd. (c).) As Bayer pointed out in her brief, Guttbinder did not make a section 217 request by offering a witness list. Nor did he seek to present live testimony at the hearing or ask for a continuance. (See ibid. [“If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance . . .“].) For this reason, we reject his argument about live testimony.

Second, we are not persuaded that the family court violated due process or section 217 by striking the letters from his therapists as hearsay. Guttbinder contends that Elkins v. Superior Court (2007) 41 Cal.4th 1337

“held that family courts must provide procedures consistent with due process, including the right to present live testimony.” But Elkins does not support his due process argument because the conclusion in Elkins was not based on due process. (See id. at p. 1357 [“The conclusion we reach also permits us to avoid the difficult question whether the [superior court‘s] local rule and order violate petitioner‘s right to due process of law, ‘[m]indful [as we are] of the prudential rule of judicial restraint that counsels against rendering a decision on constitutional grounds if a statutory basis for resolution exists’ “].) And Guttbinder‘s reliance on section 217 is misplaced because that statute establishes rules regarding the receipt of live testimony that “[a] party seek[s] to present,” (see Fam. Code, § 217, subd. (c)), not rules regarding the receipt of hearsay.

B. The Family Court Services Report

Guttbinder contends that the denial of modification of the custody and visitation orders was an abuse of discretion because the family court ignored what he refers to as the “benchmarks” in the “neutral FCS roadmap,” referring to a Family Court Services report prepared in February 2025. (Capitalization and bolding omitted.) His argument consists of five sentences. Here, Guttbinder cited only four pages from the record, including two pages from the June 27 order that was the subject of Bayer I, a certificate of electronic service, and a clerical “notice of rejection” in connection with Bayer I. (Capitalization and bolding omitted.) These citations to the record, which do not even mention the Family Court Services report, are inadequate to support his argument, and the argument could be forfeited on that ground alone. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [appellate brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears“]; Wentworth v.

Regents of University of California (2024) 105 Cal.App.5th 580, 596) [“The Courts of Appeal ‘have the discretion to disregard contentions unsupported by proper page cites to the record’ [citation] and will conclude that parties forfeit arguments by failing to support statements in the argument section of a brief with record citations“].)

Even on the merits, the argument is not persuasive. As Guttbinder notes, “[w]e review a ruling on a request for modification of a custody order for abuse of discretion.” (Anne H. v. Michael B. (2016) 1 Cal.App.5th 488, 501.) But Guttbinder has failed to carry his burden of demonstrating that any error was prejudicial. (See Contra Costa County v. Pinole Point Properties, LLC (2015) 235 Cal.App.4th 914, 925 [“The appellant has the burden of demonstrating prejudicial error based on an adequate record and appropriate legal argument“].) The report summarized the parties’ agreement, as of February 2025, on a “progressive schedule” for Guttbinder‘s parenting time, with a “transition” to unsupervised visits after two sessions of coparent counseling and a “transition” to “overnights” after six sessions. Here, Guttbinder complains that the family court did not “evaluate and implement those benchmarks” but does not even assert that any of the benchmarks were actually met.

C. Sanctions

Guttbinder contends that the family court abused its discretion in imposing a $20,000 sanction under section 271. (Bolding omitted.) We disagree.

First, Guttbinder argues that the family court “failed to make a reasoned ability to pay finding as § 271 requires.” But neither section 271 nor the cases cited by Guttbinder stand for the proposition that a family court must make an explicit finding. Section 271, subdivision (a), merely requires

that the family court “take into consideration all evidence concerning the parties’ incomes, assets, and liabilities” and “not impose a sanction . . . that imposes an unreasonable financial burden on the party against whom the sanction is imposed.”3

Guttbinder appears to stop short of contending that the $20,000 sanction was in fact an unreasonable financial burden. To the extent that he implicitly makes this argument, the family court did not abuse its discretion. Guttbinder complains that the August 28 order contains no analysis showing how a $20,000 sanction would not impose an unreasonable financial burden given the “nature of his assets” and asserts that his income and expense declaration “disclosed that most assets were retirement-based.” But as we have noted, the income and expense declaration (FL-150) relied on by Guttbinder discloses $397,000 of “[s]tocks, bonds, and other assets [he] could easily sell,” which he described as “personal investments . . . [he] [has] set aside” as “retirement savings.” Guttbinder‘s earmarking of “personal investments” as “retirement savings” does not transform them into illiquid assets whose sale would impose an unreasonable financial burden on him. ” ‘As an aspect of the presumption that judicial duty is properly performed [Evid. Code, § 664], we presume . . . that the court knows and applies the correct statutory and case law [citation] . . . .’ [Citation.]” (Davenport, supra, 194 Cal.App.4th at p. 1526.) Here, we presume that the family court considered, as required by section 271, whether a $20,000 sanction would impose an unreasonable financial burden and found that it would not, given

Guttbinder‘s access to $397,000 of assets he could easily sell. Such a finding was not outside the bounds of reason.

Guttbinder next contends that the sanction was punitive and untethered to attorney‘s fees and costs actually incurred because the family court awarded $20,000 of sanctions when Bayer only sought $13,810.4 This contention is raised for the first time on appeal, and generally we consider those issues waived. (See Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 417 [“As a general rule, ‘issues not raised in the trial court cannot be raised for the first time on appeal.’ [Citation.]“]; Newton v. Clemons (2003) 110 Cal.App.4th 1, 11 [generally, ” ‘we ignore arguments, authority, and facts not presented and litigated in the trial court’ ” as waived].) We see no reason to depart from the general rule here. In her declaration filed on August 12, 2025, Bayer sought $50,000 of attorney‘s fees because “[t]he last [Request for Order] cost [her] over $40,000” between December 2024 and June 2025, and “this [Request for Order] [would] cost [her] approximately $15,000 to oppose.” Thereafter, Guttbinder filed two declarations and one update prior to the issuance of the August 28 order, and he did not argue in any of those filings that the $50,000 sanction requested by Bayer was untethered to her attorney‘s fees and costs. Nor did Guttbinder make such an argument at the hearing when the family court asked if he wanted to add anything that was not already in his papers. We conclude that Guttbinder waived this contention.

Even if we considered Guttbinder‘s waived argument, we would presume that the family court‘s award of $20,000 of sanctions against him was correct. ” ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Here, even if Bayer only incurred $13,810 of attorney‘s fees between the June 27 order and the August 28 order, we presume that the remainder ($20,000 minus $13,810) was tethered to attorney‘s fees incurred by Bayer between December 2024 and the June 27 order. Bayer‘s responsive declaration filed on August 12, 2025, provided notice that she was again requesting sanctions for attorney‘s fees incurred prior to the June 27 order, even though the family court had previously awarded $5,000 in sanctions against Guttbinder. (See § 271, subd. (b) [“An award of attorney‘s fees and costs as a sanction pursuant to this section shall be imposed only after notice by the requesting party or the court to the party against whom the sanction is proposed and opportunity for that party to be heard is provided by the court“].) Guttbinder cannot persuasively complain that the family court improperly considered the adequacy of the $5,000 sanction that it had previously announced at the May 13 hearing (and reiterated in the June 27 order that is the basis of Bayer I), because he himself asked the family court to reconsider its prior denial of sanctions against Bayer and award attorney‘s fees he incurred before the May 13 hearing. The $5,000 sanction appears to have been insufficient to deter his subsequent conduct, including his submission of over a dozen filings prior to the August 28 order.

Guttbinder next contends that the family court‘s finding that he “frustrated settlement” is not supported by substantial evidence. We disagree. Under section 271, subdivision (a), “the court may base an award of attorney‘s fees and costs on the extent to which any conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” “Sanctions under section 271 are committed to the discretion of the trial court, and will be reversed on appeal only on a showing of abuse of that discretion, that is ‘only if, considering all of the evidence viewed more favorably in its support, and indulging all reasonable inferences in its favor, no judge could reasonably make the order.’ [Citations.]” (Davenport, supra, 194 Cal.App.4th at p. 1524.) ” ‘We review any factual findings made in connection with the award under the substantial evidence standard.’ [Citation.] [Citations.]” (Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1177.)

Substantial evidence supports the family court‘s finding in the August 28 order that “the conduct of [Guttbinder] frustrated the policy of promoting settlement and unnecessarily increased the cost of litigation under [section] 271.” First, according to the family court, Guttbinder filed at least 19 pleadings, “[m]any of these pleadings were not concise and repeated the same arguments, and several of the pleadings went over the page limits allowed under the law . . . .” Second, the family court noted that Guttbinder‘s “pleadings include language which cross the line of professional advocacy, into hostility.” For example, in his declaration dated July 28, 2025, Guttbinder accused Bayer of lying under oath, stating: “As just one example of the bad faith underlying this entire conflict, [Bayer‘s] responsive declaration falsely characterizes my collaborative May 16 . . . message as a

‘threat.’ This claim is verifiably false . . . . This willingness to lie under oath about verifiable facts demonstrates that their current procedural arguments are not made in good faith and are part of a larger pattern of abuse.” In light of this evidence, we cannot say that no judge could reasonably have found, as did the family court, that “the conduct of [Guttbinder] frustrated the policy of promoting settlement and unnecessarily increased the cost of litigation under [section] 271.”

Guttbinder contends that the family court‘s finding that he “frustrated settlement” was not supported by substantial evidence because “the only record on point shows [he] made a written settlement offer on August 13, which was summarily rejected the next day without counter-proposal.” But, as discussed above, there was substantial evidence other than Bayer‘s rejection of his “settlement offer.” And the fact that Guttbinder sent a settlement offer on August 13 does not absolve him of his conduct prior to the date, including his numerous filings and his accusation in his declaration dated July 28, 2025, that Bayer lied under oath.

Finally, as best we understand his argument, Guttbinder contends that the sanction was an abuse of discretion because it rests on a mistaken or incomplete view of the material facts about the order regarding the use of Our Family Wizard for communication between the parties. Guttbinder contends that Bayer‘s counsel confused him by directing him to use Our Family Wizard for logistics only, that he complied by using Our Family Wizard for logistics only, that the family court faulted him for misunderstanding its order about Our Family Wizard, and that the family court sanctioned him for following Bayer‘s counsel‘s “written directive.” The family court appears to have found the Our Family Wizard issue relevant to Guttbinder‘s request for changes to custody and visitation, rather than

sanctions. But even if the family court had considered the Our Family Wizard issue in determining sanctions, we cannot find an abuse of discretion because, as discussed above, the sanction was supported by substantial evidence aside from any Our Family Wizard-related facts. Moreover, one of the cases he cites (Feldman, supra, 153 Cal.App.4th 1470) for the proposition that “[w]here an appellate court cannot determine the extent to which the trial court relied on an erroneous factor in exercising discretion, remand is required” says no such thing.

D. Reassignment

In his opening brief, Guttbinder requested that we direct reassignment of this case to a different judicial officer in the family court. After briefing was complete, we granted Guttbinder‘s request to take judicial notice of a document showing that the superior court had reassigned this case for all purposes to a different family court judge. As we noted in Bayer I, the question of reassignment is thus moot, and we will not address it.

DISPOSITION

The August 28 order is affirmed. Bayer shall recover her costs on appeal.

_________________________

Miller, J.

WE CONCUR:

_________________________

Stewart, P. J.

_________________________

Richman, J.

A174545, Bayer v. Guttbinder

Notes

1
It does not appear that Guttbinder filed a witness list in advance of the hearing.
2
All undesignated statutory references are to the Family Code.
3
Guttbinder contends that section 271 requires “comparative data” in the form of an income and expense declaration from Bayer. This argument is contrary to section 271, subdivision (a), which states that “the party requesting an award of attorney‘s fees and costs is not required to demonstrate any financial need for the award.”
4
For this amount, Guttbinder cites Bayer‘s counsel‘s declaration, which stated that “based on [Guttbinder‘s] July [Request for Order] and litigation related to his refusal to meet and confer on scheduling, including the hearing, [Bayer] will have incurred $13,810 for [Guttbinder‘s] ‘do-over’ [Request for Order].”